A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
ANNOUNCEMENT: REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.
JUDICIAL: Includes CAA, food labeling, and pesticide issues.
In Jason Hill et al., Plaintiffs, and United States of America, Plaintiff-Appellee, v. Volkswagen, AG; Volkswagen Group of America, Inc.; Audi, AG; Audi of America, LLC; Porsche Cars North America, Inc.; Robert Bosch GMBH; Robert Bosch, LLC, Defendants-Appellees, v. Ronald Clark Fleshman, Jr., Proposed Intervenor, Movant-Appellant, No. 16-17060, 2018 WL 3235533 (9th Cir. July 3, 2018), an owner of a Volkswagen Jetta appealed denial of his motion to intervene in government’s Clean Air Act (CAA) suit against Volkswagen. The government had sued the carmaker over software that allowed its cars to cheat on emissions tests. Six months after filing suit, the parties reached a consent decree and here, issue was whether plaintiff could intervene in the government’s enforcement action. Appellate court observed the Clean Air Act did not grant [plaintiff] an “unconditional right” to intervene in the government’s suit. The court noted that “[t]he United States was not seeking to enforce any “standard, limitation, or order” as those terms are used in the Clean Air Act. Court affirmed, concluding that plaintiff “has no standing for the relief he seeks.”
In GERARD CAMPBELL, individually on behalf of himself and all others similarly situated, Plaintiff, v. FRESHBEV LLC, and WHOLE FOODS MARKET GROUP, INC., Defendants, 1:16-cv-7119(FB)(ST), 2018 WL 3235768 (E.D.N.Y. July 3, 2018), plaintiff claimed defendant Whole Foods fraudulently misrepresented some of its juice as unpasteurized “by failing to put an unpasteurized warning label on the juice.” At issue were defendants’ “cold-pressed” product labels on their Cranberry Apple and Pineapple juice products. Court was not persuaded by plaintiff’s arguments and reasoned that “Whole Foods’s decision not to place an unpastuerized sticker on the product shows it is not making such a representation.” The court also observed that the juices in question “do not need the warning label because of the HPP treatment, which is an effective treatment for pathogens.” Court concluded plaintiff failed to plead that Whole Foods “had an intent to defraud consumers.” Fraud claim dismissed.
In Shosha KELLMAN, et al., Plaintiffs, v. WHOLE FOODS MARKET, INC., et al., Defendants, No. 17–cv–06584–LB, 2018 WL 2938612 (N.D. Cal. June 12, 2018), plaintiffs claimed Whole Foods “made false, deceptive, and misleading representations and omissions that its products were hypoallergenic when they were not.” Defendants moved to dismiss and countered that “[a]t most, the representations affirm that the products have been tested and determined to be hypoallergenic.” Court considered the language on the labels at issue and concluded that, “[i]f anything, saying that the ‘hypoallergenic’ representation is based on lab results may make it more misleading, not less.” Defendants’ motion to dismiss denied.
In ORGANIC CONSUMERS ASSOCIATION, Plaintiff, v. R.C. BIGELOW, INC., Defendant, No. 18–82 (RBW), 2018 WL 3213304 (D.D.C. June 29, 2018), plaintiff sued alleging unlawful trade practice after “[t]ests conducted by an independent laboratory … revealed … glyphosate in Bigelow Green Tea,” and argued defendant’s failure to disclose the presence of glyphosate “deceiv[es] consumers about the nature, quality, and/or ingredients of the Products.” Here, plaintiff filed motion to remand “on the grounds that this Court lacks subject-matter jurisdiction.” Defendant countered that plaintiff’s claim “necessarily raises the federal issue of the meaning of ‘natural,’ which the FDA, applying its jurisdiction over food labeling … is currently considering … in light of the [ ] use of pesticides.” Court observed that “neither the FDA’s policy, nor its current consideration of comments, regarding the word ‘natural’ on food labels ‘necessarily raises’ a federal question.” Court found no diversity or federal question jurisdiction and remanded to Superior Court.
H.R. 6147: Department of the Interior, Environment, and Related Agencies Appropriations Act, 2019. The committees assigned to this bill sent it to the House or Senate as a whole for consideration on June 19, 2018.
REGULATORY: Includes USDA, APHIS, FWS, FNS, FS, ITA, and NOAA rules and notices.
AGRICULTURE DEPARTMENT: Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Export Inspection and Weighing Waiver for High Quality Specialty Grains Transported in Containers Under the Authority of the United States Grain Standards Act. Details here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE:
Rule that the Food, Conservation and Energy Act of 2008 amended the Lacey Act to provide, among other things, that importers submit a declaration at the time of importation for certain plants and plant products. Info here.
Rule that the Food, Conservation, and Energy Act of 2008 amended the Lacey Act to provide, among other things, that importers submit a declaration at the time of importation for certain plants and plant products. Details here.
FISH AND WILDLIFE SERVICE: Notice FWS announces the availability of the draft recovery plan for the endangered coqu[iacute] llanero, a frog endemic to Puerto Rico. Info here.
FOOD AND NUTRITION SERVICE:
Notice invites the general public and other public agencies to comment on this proposed information collection for the Assessment of Mandatory Supplemental Nutrition Assistance Program (SNAP) Employment &Training (E&T) Programs. Details here.
Notice invites the general public and other public agencies to comment on the proposed information collection. Info here.
FOREST SERVICE: Notice the Shasta-Trinity National Forest is withdrawing its Notice of Intent issued on April 22, 2011, for preparation of an Environmental Impact Statement (EIS) for the I-5 Corridor Fuels Reduction Project. Info here.
INTERNATIONAL TRADE ADMINISTRATION:
Notice the Department of Commerce is rescinding the administrative review of the antidumping duty order on certain frozen warmwater shrimp from China. Details here.
Notice that on May 23, 2018, the Department of Commerce received a timely request for a semiannual new shipper review from Jinxiang Infang Fruit & Vegetable Co., Ltd, in accordance with section 751(a)(2)(B)(i) of the Tariff Act. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule revises the current closure regulations for commercial shark fisheries. Info here.
Rule NMFS approves and implements management measures to designate 13 New Jersey artificial reefs as special management zones under the black sea bass provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. Details here.
Notice NMFS Greater Atlantic Region Fisheries Office (GARFO), 55 Great Republic Drive, Gloucester MA 01930 [Responsible Party: Julie Crocker], has applied in due form for a permit to take Atlantic (Acipenser oxyrinchus). Info here.
Notice that Oregon State University, Marine Mammal Institute, 2030 Southeast Marine Science Drive, Newport, OR 97365 (Responsible Party: Bruce Mate, Ph.D.), has applied in due form for a permit to conduct research on 67 species. Details here.