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, CWA, urb & ag, and food safety issues.

In EAT RIGHT FOODS LTD., Plaintiff-Counter-Defendant-Appellant, v. WHOLE FOODS MARKET, INC., Defendant, and Whole Foods Market Services, Inc.; Whole Foods Market Pacific Northwest, Inc., Defendants-Counter-Claimants-Appellees, No. 15-35524, 880 F.3d 1109 (9th Cir. January 29, 2018), the owner of the “EATRIGHT” trademark sued Whole Foods Market,  alleging “trademark infringement, false designation of origin, and unfair competition.” Store was granted summary judgment and plaintiff appealed. Appellate court found it was “not abuse of discretion . . . to rule that trademark owner had constructive knowledge of store’s alleged infringement.” Court also determined that “summary judgment on basis of acquiescence was not warranted.” Vacated and remanded.

In CONSERVATION LAW FOUNDATION, INC., Plaintiff, Appellant, v. Scott PRUITT, Administrator of the United States Environmental Protection Agency; Deborah Szaro, in her capacity as Acting Regional Administrator, United States Environmental Protection Agency, Region 1, Defendants, Appellees. Conservation Law Foundation, Inc.; Charles River Watershed Association, Inc., Plaintiffs, Appellants, v. U.S. Environmental Protection Agency, Scott Pruitt, Administrator; U.S. Environmental Protection Agency, Region I, Deborah Szaro, Acting Regional Administrator, Defendants, Appellees, No. 17-1166, No. 17-1354, 881 F.3d 24 (1st Cir. January 24, 2018), environmentalists brought citizen suit under the Clean Water Act (CWA) against the Environmental Protection Agency (EPA). They claimed the agency “abdicated a nondiscretionary duty to require storm water dischargers to apply for pollution discharge permits.” Lower court dismissed for lack of subject matter jurisdiction and plaintiffs appealed. Appellate court concluded the EPA’s “approval of total maximum daily loads was not a decision for which a discharger was required to obtain an individual permit, so that the EPA’s notice requirement to individual dischargers was not triggered.” Affirmed for defendant.

In Martin Richard HIMSEL, Janet Himsel, Robert Lannon, and Susan Lannon, Appellants–Plaintiffs, v. INDIANA PORK PRODUCERS ASSOCIATION and Livestock Engineering Solutions, Appellees–Nonparties, No. 32A01–1703–PL–612, 2018 WL 845496 (Ind. Ct. App. February 14, 2018), a third party obtained a rezoning to allow for the creation of a concentrated animal feeding operation CAFO on their property. Defendant (IPPA) testified in favor of the rezoning, stating that “no studies had been done regarding odors from hog CAFOs and denying that there was any correlation between CAFOs and a loss of value to nearby properties.” Plaintiffs sued alleging nuisance, negligence and trespass and sent a discovery request to defendant. Defendant provided some requested documents, but not others and plaintiff filed motion to compel. Court observed that plaintiffs “already acquired substantial evidence from other sources regarding the readily-available knowledge of the potentially-harmful effects of CAFOs as reflected in government, academic, and scientific studies.” Court ruled discovery plaintiffs sought from defendant was “unreasonably cumulative or duplicative, or … obtainable from some other source that is more convenient, less burdensome, or less expensive.”

In James CRATEN, et al., Plaintiffs, v. FOSTER POULTRY FARMS INCORPORATED, Defendant, No. CV-15-02587-PHX-DLR, 2018 WL 834937 (D. Ariz. February 13, 2018), plaintiff contracted salmonellosis caused by raw chicken processed by Foster Farms. Plaintiff sued and sought punitive damages. Defendant moved for summary judgment and denial of plaintiffs’ punitive damages claim. Court took judicial notice that the USDA-FSIS “inspected and approved for sale all of the raw chicken sold by Foster Farms during the relevant time period.” Court concluded that “a jury cannot as a matter of law find that Foster Farms acted so reprehensibly that punitive damages are warranted when the government agency responsible for regulating the safety of its products allowed them to be sold to the public.” Plaintiffs’ claim for punitive damages denied.


H.R. 4378: Nuclear Energy Research Infrastructure Act of 2017. Text for status Reported by House Committee (Feb 13, 2018) is now available.

H.R. 4376: Department of Energy Research Infrastructure Act of 2017. Text for status Reported by House Committee (Feb 13, 2018) is now available.

H.R. 4377: To direct the Secretary of Energy to carry out certain upgrades to research equipment and construct research user facilities. Text for status Reported by House Committee (Feb 13, 2018) is now available.

H.R. 4675: Low-Dose Radiation Research Act of 2017. Text for status Reported by House Committee (Feb 13, 2018) is now available.

H.R. 5005: To direct the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of establishing the birthplace of James Weldon Johnson in Jacksonville, Florida, as a unit of the National Park System. Text is now available.

H.R. 835: To update the map of, and modify the maximum acreage available for inclusion in, the Florissant Fossil Beds National Monument. Ordered to be Reported by Unanimous Consent.

S. 2426: A bill to amend the Agricultural Act of 2014 to return premiums paid under the margin protection program for dairy producers to participating dairy operations. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 5029: To amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to require the specialty crops committee to make an additional recommendation regarding agricultural technology. Referred to the House Committee on Agriculture which will consider it before sending it to the House floor for consideration.

H.R. 5017: To amend the Department of Agriculture Reorganization Act of 1994 to reauthorize the Healthy Food Financing Initiative. Referred to the House Committee on Agriculture which will consider it before sending it to the House floor for consideration.

REGULATORY: Includes USDA, EPA, FSIS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Approval of Laboratories for Conducting Aquatic Animal Tests for Export Health Certificates. Details here.


Rule amends the tolerances for residues of pendimethalin in or on alfalfa, forage and alfalfa, hay. Details here.

Rule EPA is taking final action to approve the state implementation plan (SIP) revision submitted on March 9, 2017 by the Connecticut Department of Energy and Environmental Protection addressing the nonattainment new source review requirements for the 2008 8-hour ozone National Ambient Air Quality Standard. Details here.

Rule EPA is approving State Implementation Plan revisions submitted by the State of New Hampshire on August 9, 2011 and July 23, 2013. Info here.

Rule EPA is approving a source-specific revision to the New York State Implementation Plan (SIP). Info here.

Rule EPA Region 1 announces the deletion of the Hatheway & Patterson Superfund Site (Site) located in Mansfield and Foxborough, Massachusetts, from the National Priorities List (NPL). Details here.

Rule EPA is proposing to approve a revision to the Alaska Regional Haze State Implementation Plan (SIP), submitted by the State of Alaska on March 10, 2016. Details here.

Rule EPA is proposing to approve, as part of the State Implementation Plan (SIP) for the State of Arizona, the second 10-year maintenance plan for the Douglas maintenance area for the 1971 National Ambient Air Quality Standards for sulfur dioxide. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice USDA and FDA are sponsoring a public meeting on April 4, 2018. Details here.

NATIONAL OCEAINC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Central Regulatory Area of the Gulf of Alaska. Info here.