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

ANNOUNCEMENTS:

Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, June 20th: Cottage Food Laws: Adequately Addressing Food Safety and Economic Opportunity? Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.

JUDICIAL: Includes National Organic Program and CWA issues.

In ORGANIC CONSUMERS ASSOCIATION, Plaintiff and Appellant, v. THE HONEST COMPANY, INC., Defendant and Respondent. B280836, 2018 WL 2931978 (Cal. Ct. App. June 6, 2018), plaintiff sued for misrepresentation under the California Organic Products Act of 2003 (COPA) to stop defendant from labeling its infant formula as “organic.” Plaintiff claimed defendant’s formula contains “synthetic ingredients” not allowed in organic products under the Organic Food Production Act. Defendant argued plaintiff’s suit “is a direct challenge to the federal organic certification process” and preempted by federal law. Trial court agreed with defendant and dismissed. Appellate court concluded that plaintiff’s state law claim that defendant’s labeling infant formula as organic when it is not “stands as an obstacle to the stated congressional objectives of the OFPA and is preempted.” Affirmed for defendant.

ALTAMAHA RIVERKEEPER, INC. v. RAYONIER PERFORMANCE FIBERS, LLC et al, A18A0594, 2018 WL 2947915 (Ga. Ct. App. June 13, 2018) concerned a dispute involving a National Pollutant Discharge Elimination System (NPDES) permit issued by the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources renewing defendant’s authorization “to discharge effluent into the Altamaha River from its pulp plant.” Plaintiff argued it was adversely impacted by issuance of the permit and an administrative law revoked the permit. Superior court then reversed and affirmed the permit, and here, plaintiff argued court erred by interpreting the statute at issue “to prohibit only ‘unreasonable’ interference with legitimate water uses.” Appellate court considered the issue of “reasonableness” and observed that “[m]uch of the evidence, such as the duration and frequency of low flow events, would need to be considered anew in assessing whether the interference with legitimate water uses was unreasonable.” Remanded.

LEGISLATIVE:

S. 3045: A bill to amend title 31, United States Code, to establish a safe harbor with respect to keep open letters. Text is now available.

S. 3046: A bill to allow the Secretary of Agriculture to enter into self-determination contracts with Indian Tribes and Tribal organizations to carry out supplemental nutrition assistance programs. Text is now available.

H.R. 2365: Desert Community Lands Act. Ordered to be Reported (Amended) by the Yeas and Nays: 20 – 15.

H.R. 2606: Stigler Act Amendments of 2017. Ordered to be Reported (Amended) by Voice Vote.

H.R. 3744: Tribal Recognition Act of 2017. Ordered to be Reported (Amended) by the Yeas and Nays: 20 – 14.

H.R. 5787: Strengthening Coastal Communities Act of 2018. Ordered to be Reported (Amended) by Voice Vote.

H.R. 5874: Restoring Accountability in the Indian Health Service Act of 2018. Ordered to be Reported by Voice Vote.

S. 3042: A bill to provide for the reform and continuation of agricultural and other programs of the Department of Agriculture through fiscal year 2023. Ordered to be reported with an amendment in the nature of a substitute favorably.

S. 3062: A bill to amend the Department of Agriculture Reorganization Act of 1994 to require the Military Veterans Agricultural Liaison to provide certain outreach to veterans with respect to agricultural employment. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 6091: To provide for the reform and continuation of agricultural and other programs of the Department of Agriculture through fiscal year 2023. Referred to the House Committee on Agriculture.

H.R. 6088: To amend the Mineral Leasing Act to authorize notifications of permit to drill. Referred to the House Committee on Natural Resources.

S. 3060: A bill to repeal section 2141 of the Revised Statutes to remove the prohibition on certain alcohol manufacturing on Indian lands. Referred to the Senate Committee on Indian Affairs.

H.R. 6087: To authorize the Secretary of the Interior to recover the cost of processing administrative protests for oil and gas lease sales, applications for permits to drill, and right of way applications. Referred to the House Committee on Natural Resources.

H.R. 6083: To amend the Omnibus Public Land Management Act of 2009 to modify the terms of the Jackson Gulch rehabilitation project in Colorado. Referred to the House Committee on Natural Resources.

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

AGRICULTURE DEPARTMENT: Notice USDA will submit information collection requirement(s) to OMB for review. Title: Census of Aquaculture. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule proposing to amend the fruits and vegetables regulations to allow the importation into the continental United States of fresh avocado fruit from continental Ecuador. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve a revision to the Commonwealth of Pennsylvania state implementation plan (SIP) submitted by the Pennsylvania Department of Environmental Protection (PADEP) on May 2, 2018. Info here.

Rule EPA is approving the regional haze progress report under the Clean Air Act (CAA) as a revision to the Wisconsin state implementation plan (SIP). Details here.

Rule EPA is proposing to approve an Arizona state implementation plan (SIP) revision for attaining the 1-hour sulfur dioxide primary national ambient air quality standard for the Miami SO<INF>2</INF> nonattainment area (NAA). Info here.

Rule EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Connecticut. Info here.

FISH AND WILDLIFE SERVICE: Notice the Kauai Island Utility Cooperative has submitted an application to FWS for renewal of their incidental take permit under the Endangered Species Act. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA is announcing the availability of a final guidance for industry entitled “The Declaration of Certain Isolated or Synthetic Non-Digestible Carbohydrates as Dietary Fiber on Nutrition and Supplement Facts Labels; Guidance for Industry.” Info here.

Notice FDA is announcing the availability of a draft guidance for industry #246 entitled “Hazard Analysis and Risk-Based Preventive Controls for Food for Animals: Supply-Chain Program.” Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Commerce published the Preliminary Results of the 22nd administrative review and two concurrent new shipper reviews of the antidumping duty order on fresh garlic from China on December 7, 2017. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues final 2018 and projected 2019-2020 specifications for the small-mesh multispecies fishery, and corrects an error from a previous action. Details here.

Rule extends the region-wide moratorium on the harvest of gold corals in the U.S. Pacific Islands through June 30, 2023. Details here.

Rule NMFS intends to consider expanded harvester reporting requirements for the American lobster fishery as recommended by the Atlantic States Marine Fisheries Commission and is soliciting comments. Info here.

Notice NMFS announces the availability of a draft environmental impact statement (EIS) pursuant to the National Environmental Policy Act of 1969 (NEPA), in order to assess the impacts of issuing annual catch limits for the subsistence harvest of bowhead whales by Alaska Natives from 2019 onward. Details here.

Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: Western Pacific Community Development Program. Info here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the Scripps Institution of Oceanography (SIO) to take marine mammals incidental to a low-energy marine geophysical survey in the Northwest Atlantic Ocean. Details here.