JUDICIAL:

Roosevelt Irrigation Dist., Plaintiff, v. United States of Am., et al., Defendants. Salt River Project Agric. Improvement & Power Dist., et al., Counter-Claimants/ Cross-Claimants,, No. CV-15-00448-PHX-JJT, 2019 WL 1087939 (D. Ariz. Mar. 7, 2019)
At issue is Plaintiff and Counter-Defendant Roosevelt Irrigation District’s (“RID”) Motion to Exclude Martin Bauer as an Expert (Doc. 272, Mot.), to which Defendants and Counterclaimants Salt River Project Agricultural Improvement and Power District (“the District”) and Salt River Valley Water Users’ Association (“the Association”) (collectively “SRP”), and Defendants the United States, Department of Interior, and the Bureau of Reclamation (“Reclamation) (collectively, “the Government”) filed Responses (Doc. 299, Gov’t Resp.; Doc. 300, SRP Resp.). No party requested oral argument on the Motion, and the Court finds the Motion ripe for resolution without such argument. See LRCiv 7.2(f). For the reasons that follow, the Court will deny in part and grant in part the Motion.
In re Roundup Prod. Liab. Litig., No. 16-MD-02741-VC, 2019 WL 1084170 (N.D. Cal. Mar. 7, 2019)
Beyond its motion for summary judgment on causation, Monsanto moved for summary judgment against the three bellwether plaintiffs on four other grounds. Specifically, Monsanto contended that: (i) the plaintiffs’ claims are expressly preempted by federal law; (ii) the plaintiffs’ claims are impliedly preempted; (iii) the evidence is insufficient to support a jury verdict for the plaintiffs on their failure-to-warn claims; and (iv) the evidence is insufficient to support a punitive damages award. The Court previously informed the parties that Monsanto’s motion on these issues would be denied; this ruling now explains why.
Monsanto also seeks summary judgment against one specific plaintiff, Gebeyehou, for the additional reason that his claims are barred by the statute of limitations. The Court will rule on that motion following the completion of supplemental briefing.
KEVIN BRANCA, on behalf of himself & all others similarly situated, Plaintiff, v. BAI BRANDS, LLC, a New Jersey Ltd. Liab. Company; DR PEPPER SNAPPLE GROUP, INC., a Delaware Corporation; LARRY YOUNG, an individual; BEN WEISS, an individual; JUSTIN TIMBERLAKE, an individual, Defendants., No. 318CV00757BENKSC, 2019 WL 1082562 (S.D. Cal. Mar. 7, 2019)
Defendants manufacture, distribute, advertise, market, and sell beverage products labeled “Bai Antioxidant Infusion Brasilia Blueberry,” “Bai Antioxidant Infusion Ipanema Pomegranate,” “Bai Antioxidant Infusion Malawi Mango,” “Bai Bubbles Sparkling Antioxidant Infusion Bolivia Black Cherry,” and “Bai Bubbles Sparkling Antioxidant Infusion Jamaica Blood Orange.” (Doc. No. 19-1 at 2.) The ingredient list on Defendants’ Products provides “they contain only natural ingredients and are flavored only with natural ingredients when the Products, in fact, contain undisclosed artificial flavors in violation of state and federal law.” (Doc. No. 22 at 1.) Specifically, “Defendants add a synthetic industrial chemical called d–1 malic acid, in the form of a racemic mixture of d–and 1–isomers, to flavor the Products and make them taste like fresh fruit.” Id. Malic acid has two forms: 1-malic acid, which occurs naturally and is found in several fruits and vegetables, and d-1 malic acid, which is chemically manufactured from benzene or butane. (See Id.)
According to Branca, d-1 malic acid poses potential safety risks since it has “not been extensively studied for its health effects in human beings.” (See Doc. Nos. 3 and 22.) Branca claims that the d-1 malic acid in Defendants’ Products is used to give them their tangy, fresh fruit flavor. Id. Defendants do not contest that the Products contain malic acid. (See Doc. No. 18-1.) Rather, Defendants argue the malic acid in their Products is natural d-1 malic acid which is used as a pH control agent, not as a flavor. Id. Branca, on behalf of himself and a purported class of similarly situated individuals, filed this action against Defendants concerning their failure to disclose an artificial flavoring ingredient in their Bai Beverage Products (the “Products”).
This is important because Defendants’ Products are labeled as containing “NO artificial flavors” and as being “naturally flavored.” But because of the d-1 malic acid, Branca claims Defendants’ Product “labels violate California and federal statute and state common law in multiple regards” including California’s Sherman Law, Cal. Health & Saf. Code § 109875 et seq., and various other FDA regulations. (Doc. No. 3 ¶¶ 28-53.) And since Defendants’ Products were not labeled as containing artificial flavors, Branca alleges he paid a premium for Products he was misled into believing were naturally flavored.
*2 Defendants contend that “Branca simply assumes – with no basis – that the malic acid in the Products is not natural malic acid (1-malic acid), but rather d-1-malic acid. (Doc. No. 18-1 at 1.) Moreover, he “misapprehends federal labeling regulations with respect to malic acid” because “federal labeling law does not consider malic acid to be a flavor, the presence of malic acid as an ingredient has no bearing on label statements regarding flavors, whether natural or artificial.” Id.
Based on these and other facts, Branca filed this case on behalf of himself and all others similarly situated, asserting nine separate claims.1 Defendants now move to dismiss the First Amended Complaint (“FAC”) and for sanctions.
REGULATORY:

Notice and request for comment: Natural Resources Conservation Service (NRCS), USDA. The Agriculture Improvement Act of 2018 (2018 Farm Bill) amended the Food Security Act of 1985, to require an expedited review of conservation practice standards, including engineering design specifications, that were in effect on December 19, 2018. NRCS will evaluate opportunities to increase flexibility in the conservation practice standards in a manner that ensures equivalent natural resource benefits. This notice announces that NRCS will be reviewing the national conservation practice standards in the National Handbook of Conservation Practices and is requesting comments from the public about how to improve the conservation practice standards. Info HERE

Notice of availability and request for comment: Food Safety and Inspection Service, USDA; The Food Safety and Inspection Service (FSIS) is announcing the availability of and requesting comments on a guideline to assist the meat and poultry industry develop written programs for responding to consumer complaints about adulterated or misbranded meat and poultry products. FSIS developed this guideline in response to an increase in the number of recalls of meat and poultry products contaminated with foreign materials. Info HERE

Notice; request for comment: Federal Crop Insurance Corporation, USDA; This notice announces a public comment period on the information collection requests (ICRs) associated with the interpretations of provisions of the Act or any regulation codified in the Code of Federal Regulations (Final Agency Determination) and interpretations of policy provision not codified in the Code of Federal Regulations or any procedure used in the administration of the Federal crop insurance program (FCIC interpretation). Info HERE

Final rule: Environmental Protection Agency (EPA); This regulation establishes tolerances for residues of S-metolachlor in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). Info HERE

Notification of referendum: Agricultural Marketing Service, Agriculture: This document directs that a referendum be conducted among eligible producers of peanuts to determine whether they favor continuance of the Agricultural Marketing Service (AMS) regulations regarding a national peanut research and promotion program. Info HERE

Notification of referendum: Agricultural Marketing Service, USDA; This document directs that a referendum be conducted among eligible producers and importers of Christmas trees to determine whether they favor continuance of the Agricultural Marketing Service’s (AMS) regulations regarding a national Christmas tree research and promotion program. Info HERE

Final rule: Agricultural Marketing Service, USDA; This rule modifies regulations and standards issued pursuant to the Agricultural Marketing Act of 1946 by removing references to power of attorney. Further, this rule modifies language to ensure consistency between the regulations and standards for fresh and processed fruits and vegetables. Power of Attorney is an outdated, cumbersome tool that increases the cost and record retention requirements for stakeholders when conducting business. We are making these changes to eliminate these requirements. This will allow us to provide services to our customers faster and without the financial and record retention burden. The functions of the Power of Attorney are currently done by a Supervisor or “inspector in charge”. Info HERE

Final rule: Agricultural Marketing Service, USDA; This final rule amends the Class I skim milk price formula for milk pooled under Federal milk marketing orders (FMMO) as required by the Agriculture Improvement Act of 2018 (2018 Farm Bill). Under the amended price formula, the Class I skim milk price will be the simple average of the monthly advanced pricing factors for Class III and Class IV skim milk, plus $0.74 per cwt, plus the applicable adjusted Class I differential. Prior to this amendment, the Class I skim milk price was the higher of the two advanced pricing factors, plus the applicable adjusted Class I differential. Info HERE

Notice and request for comments: Foreign Agricultural Service and Commodity Credit Corporation, USDA. In accordance with the Paperwork Reduction Act of 1995, this notice announces the Commodity Credit Corporation’s (CCC) intention to request a revision from the Office of Management and Budget (OMB) for a currently approved information collection process in support of the Foreign Market Development (FMD) Program and the Market Access Program (MAP). Info HERE

Notice: U.S. Department of Agriculture (USDA), Food, Nutrition and Consumer Services (FNCS); Department of Health and Human Services. The Departments of Agriculture and Health and Human Services announce the first meeting of the newly appointed 2020 Dietary Guidelines Advisory Committee (the Committee). This meeting will be open to the public. Additionally, this notice opens a public comment period that will remain open until early 2020, throughout the Committee’s deliberations. Info HERE

Notice and request for comments: Foreign Agricultural Service and Commodity Credit Corporation, USDA; In accordance with the Paperwork Reduction Act of 1995, this notice announces the Commodity Credit Corporation’s (CCC) intention to request a revision from the Office of Management and Budget (OMB) for a currently approved information collection process in support of the Foreign Market Development (FMD) Program and the Market Access Program (MAP). Info HERE

 

Legislative:

H.R. 1550: To support State and tribal efforts to develop and implement management strategies to address chronic wasting disease among deer, elk, and moose populations, to support applied research regarding the causes of chronic wasting disease and methods to control the further spread Info HERE

S. 689: A bill to amend the Animal Health Protection Act to support State and Tribal efforts to develop and implement management strategies to address chronic wasting disease among deer, elk, and moose populations, to support research regarding the causes of chronic wasting disease and methods Info HERE

S. 677: A bill to amend the Food and Nutrition Act of 2008 to provide for the participation of Puerto Rico, American Samoa, and the Commonwealth of the Northern Mariana Islands in the supplemental nutrition assistance program, and for other purposes. Info HERE