A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
ANNOUNCEMENT: REGISTER NOW for the Fifth Annual Mid-South Agricultural and Environmental Law Conference and you’ll be eligible for two “bonus” hours of online CLE! Details here.
JUDICIAL: Includes pesticides, food labeling, environmental, and secured transaction issues.
In RECYC SYSTEMS SOUTHEAST, LLC, Plaintiff, v. FARMLAND MUTUAL INSURANCE COMPANY, Defendant, NO. 4:17-CV-225 (CDL), 2018 WL 2247247 (M.D. Ga. May 16, 2018), some property owners sued plaintiff in Alabama state court for property damage caused by odors emanating from plaintiff’s holding pond. Plaintiff tendered the lawsuit to its insurance company, but insurer refused to defend plaintiff. Insurer maintained the claims asserted in that lawsuit “are excluded by the policy’s pollution exclusion.” Plaintiff sued insurer for breach of contract and specific performance. Court observed that an insurer has no duty to indemnify “if the allegations in the underlying complaint and the terms of the policy ‘unambiguously exclude coverage.’” Court also considered the language of the insurance policy at issue and noted that “[t]his insurance does not apply to … ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants.’” Defendant’s motion for judgment on pleadings granted.
In David CHAVEZ, individually and on behalf of others similarly situated, Plaintiff, v. CHURCH & DWIGHT CO., INC., Defendant, No. 17 C 1948, 2018 WL 2238191 (N.D. Ill. May 16, 2018), plaintiff sued for consumer fraud, alleging defendant understated the amount of folic acid found in its dietary supplement product. Plaintiff claimed the “Vitafusion” product “contains more than three times the amount of folic acid per serving declared on the label and that this overabundance is potentially harmful.” Defendant countered plaintiff’s claims “are preempted by federal nutrition labeling laws,” and issue for court was whether the Food Drug and Cosmetic Act (FDCA) requires manufacturers to disclose “potential adverse effects of consuming certain levels of nutrients.” Court reasoned that “whether the mislabeling claim is preempted turns on whether the folic acid discrepancy in Vitafusion was within the ‘reasonable excess’ provision of the regulation.” Court concluded plaintiff plausibly alleged defendant’s product was “misbranded within the confines of the FDCA,” and denied defendant’s motion to dismiss based on federal preemption.
In CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff–Appellant, v. WESTSIDE DELIVERY, LLC; and Does 1 through 10, inclusive, Defendants–Appellees, No. 16-56558, 888 F.3d 1085 (9th Cir. April 27, 2018), plaintiff, California Department of Toxic Substances Control (DTSC), sued tax-sale purchaser of property for recovery of response costs under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Lower court granted summary judgment to purchaser and DTSC appealed. Appellate court found tax deed executed to tax-sale purchaser by tax collector under California law “fit within definition of a “contractual relationship” between purchaser and prior owner of contaminated property.” Court also determined that “CERCLA’s third-party defense to liability did not apply to tax-sale purchaser.” Reversed.
RELIANCE AG, LLC APPELLANT v. SOUTHERN STATES SIMPSON COOPERATIVE, INC.; JAMIE SUMMERS FARMS, LLC; JAMIE SUMMERS; FARM CREDIT SERVICES MID-AMERICA, PCA; AND HOPKINSVILLE ELEVATOR CO., INC. APPELLEES and RELIANCE AG, LLC APPELLANT v. FARM CREDIT SERVICES MID-AMERICA, PCA; CROP PRODUCTION SERVICES, INC.; JOHN SUMMERS; AND HOPKINSVILLE ELEVATOR CO., INC. APPELLEES and RELIANCE AG, LLC APPELLANT v. CROP PRODUCTION SERVICE, INC.; FARM CREDIT SERVICES, MID-AMERICA, PCA; JOHN SUMMERS; AND HOPKINSVILLE ELEVATOR CO., INC. APPELLEES and RELIANCE AG, LLC APPELLANT v. FARM CREDIT SERVICES MID-AMERICA, PCA; SOUTHERN STATES SIMPSON COOPERATIVE, INC.; JAMIE SUMMERS FARMS, LLC; JAMIE SUMMERS; AND HOPKINSVILLE ELEVATOR CO., INC. APPELLEES, NO. 2016-CA-001348-MR, No. 2016-CA-001538-MR, No. 2016-CA-001539-MR, No. 2016-CA-001540-MR, 2018 WL 2176108 (Ky. Ct. App. May 11, 2018) involved a dispute over payments and liens after plaintiff rendered crop spraying services to defendants. Lower court ruled plaintiffs’ liens were limited to the “cost of the crop spraying services it provided . . . and could not include charges for the agricultural inputs (pesticides, fertilizers and the like) that were sprayed on the crops.” On appeal, plaintiff argued the agricultural lien statute “should be interpreted to cover the total amount of its invoices . . . including the agricultural inputs.” Defendants argued the applicable statue differentiates between “goods” and “services,” and the appellate court observed that the statute “grants a lien for services performed by a custom operator but not for goods sold.” Court concluded the legislature “made a conscious decision to limit this particular lien statute to the value of the service without inclusion of the agricultural inputs.”
H.R. 1417: National Law Enforcement Museum Exhibits Act. Text for status Passed the House (May 15, 2018).
H.R. 224: Polar Bear Conservation and Fairness Act. Ordered to be Reported by Voice Vote.
H.R. 857: California Off-Road Recreation and Conservation Act. Ordered to be Reported (Amended) by Unanimous Consent.
S. 1400: Safeguard Tribal Objects of Patrimony Act of 2017. Ordered to be reported without amendment favorably.
H.R. 3045: Eastern Legacy Extension Act. Ordered to be Reported (Amended) by Unanimous Consent.
H.R. 3186: Every Kid Outdoors Act. Ordered to be Reported by Unanimous Consent.
S. 1692: National Emergency Medical Services Commemorative Work Act. Text for status Reported by Senate Committee (May 16, 2018) is now available.
H.R. 3916: FISH Act. Committees assigned to this bill sent it to the House or Senate as a whole for consideration on May 16, 2018.
H.R. 4419: Bureau of Reclamation and Bureau of Indian Affairs Water Project Streamlining Act. Committees assigned to this bill sent it to the House or Senate as a whole for consideration on May 16, 2018.
S. 2372: Veterans Cemetery Benefit Correction Act. Text for status Passed the House with an Amendment.
S. 2804: A bill to provide for the reform and continuation of agricultural and other programs of the Department of Agriculture for Indian Country. Ordered to be reported without amendment favorably.
S. 2870: A bill to authorize the Secretary of the Interior to conduct a special resource study of the site known as “Amache” in the State of Colorado. Referred to the Senate Committee on Energy and Natural Resources.
S. 2857: A bill to designate the Nordic Museum in Seattle, Washington, as the “National Nordic Museum.” Referred to the Senate Committee on Energy and Natural Resources.
S. 2858: A bill to amend the Energy Policy Act of 2005 to require the establishment of a small business voucher program. Referred to the Senate Committee on Energy and Natural Resources.
S. 2869: A bill to amend the Safe Drinking Water Amendments of 1977 to require the Administrator of the Environmental Protection Agency to report certain hiring to carry out the Safe Drinking Water Act. Referred to the Senate Committee on Environment and Public Works.
REGULATORY: Includes EPA, FWS, FDA, ITA, NOAA rules and notices.
AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Rural Community Development Initiative (RCDI). Details here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA is finalizing action on revisions to the Bay Area Air Quality Management District portion of the California State Implementation Plan. Details here.
Rule EPA is proposing to approve elements of the State Implementation Plan submission from New Jersey regarding the infrastructure requirements of section 110 of the Clean Air Act for the 2012 annual fine particulate matter National Ambient Air Quality Standard. Info here.
Rule EPA Region 10 is issuing a Notice of Intent to Delete Frontier Hard Chrome, Inc. Superfund Site located in Vancouver, Washington, from the National Priorities List and requests public comments on this proposed action. Info here.
FISH AND WILDLIFE SERVICE:
Notice FWS make available the draft Western Travis County Public Utility Agency Habitat Conservation Plan, as well as the associated draft environmental assessment, for construction of a raw water pipeline in Travis County, Texas. Info here.
FOOD AND DRUG ADMINISTRATION:
Rule FDA made a final determination that there is no longer a consensus among qualified experts that partially hydrogenated oils, which are the primary dietary source of industrially produced trans fatty acids, are generally recognized as safe for any use in human food. Info here.
Rule FDA is denying a food additive petition, submitted by the Grocery Manufacturers Association, requesting that the food additive regulations be amended to provide for the safe use of partially hydrogenated vegetable oils in certain food applications. Details here.
INTERNATIONAL TRADE ADMINISTRATION:
Notice ITA is partially rescinding the expedited review of the countervailing duty order (CVD) on certain softwood lumber products from Canada for the period January 1, 2015, through December 31, 2015. Details here.
Notice ITA is rescinding the administrative review of the antidumping duty (AD) order on honey from China for the period of review December 1, 2016, through November 30, 2017. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Notice NOAA will submit to the Office of Management and Budget for clearance a proposal for collection of information. Title: Preliminary Case Study Assessing Economic Benefits of Marine Debris Reduction. Info here.
Notice NOAA will submit to the Office of Management and Budget for clearance a proposal for collection of information. Title: Deep Seabed Mining Exploration Licenses. Info here.