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

ANNOUNCEMENT: Register today for our Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 7-8. CLE credit available! Additional information available here.

JUDICIAL: Includes pesticides and food labeling issues.

In GREGORY ARTHUR v. UNITED INDUSTRIES CORPORATION, No. 2:17-cv-06983-CAS(SKx), 2018 WL 2276636 (C.D. Cal. May 17, 2018), plaintiff filed class action alleging violations of the Consumers Legal Remedies Act (CLRA) and the False Advertising Law (FAL), claiming that each bottle of defendant’s herbicide concentrate “is capable of making only a fraction of defendant’s representations when mixed according to defendant’s instructions for ‘general weed control.’” Under deposition, plaintiff revealed he did not read the concentrate’s mixing instructions. Court reasoned plaintiff failed to “demonstrate reliance for purposes of proving liability under the UCL and FAL on a class-wide basis.” Plaintiff’s motion for class certification denied.

In Mark J. PATANE, et al., Plaintiffs, v. NESTLÉ WATERS NORTH AMERICA, INC., Defendant, No. 3:17–cv–01381 (JAM), 2018 WL 2271161 (D. Conn. May 17, 2018), plaintiffs alleged defendant’s bottled water products are “fraudulently labeled and sold as ‘spring water’ despite not meeting the requirements for ‘spring water’ as defined by law.” Defendant moved to dismiss, arguing plaintiff’s claims are  preempted by federal law. Court considered the FDCA and noted reasoned that “to survive preemption, a state law claim must rely on an independent state law duty that parallels or mirrors the FDCA’s requirement for “spring water,” but must not solely and exclusively rely on violations of the FDCA’s own requirements.” Court concluded plaintiff sued “solely to enforce the FDCA’s federal ‘spring water’ standard,” and found plaintiff’s complaints “impliedly preempted.” Motion to dismiss granted.

ELIZABETH MANUEL and VIVIEN GROSSMAN, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. PEPSI-COLA COMPANY, Defendant, 17 Civ. 7955 (PAE), 2018 WL 2269247 (S.D.N.Y. May 17, 2018) involved a dispute regarding defendant’s use of the term “diet” in connection with its Diet Pepsi product. Plaintiffs alleged unfair and deceptive business practices, false advertising, and fraud under New York law. Court agreed plaintiffs’ claims are not preempted, but noted that the “reasonable consumer” test is an objective one. Court ultimately found that reasonable consumers, “surely understand that ‘diet’ soft drinks are simply ‘lower calorie or calorie-free versions of their sugar-laden counterparts.’” Court concluded plaintiff failed to adequately plead “deception” and dismissed the suit.


S. 2866: A bill to require the Secretary of the Army to expedite the completion of certain feasibility studies and reports and to amend the Coastal Barrier Resources Act to ensure public safety. Referred to the Senate Committee on Environment and Public Works.

H.R. 5837: To amend the Consolidated Farm and Rural Development Act to modify provisions relating to the household water well system grant program. Referred to the House Committee on Agriculture.

H.R. 5849: To amend the Food and Nutrition Act of 2008 to require that supplemental nutrition assistance program benefits be calculated with reference to the cost of the low-cost food plan as determined by the Secretary of Agriculture. Referred to the House Committee on Agriculture.

S. Res. 515: A resolution honoring the 70th anniversary of the reactivation in 1948 of the 3d Infantry Regiment of the United States Army. Text for status Resolution Agreed to by Senate (May 17, 2018) is now available.

H.R. 5885: To reauthorize the Partners for Fish and Wildlife Program and certain wildlife conservation funds, to establish prize competitions relating to the prevention of wildlife poaching and trafficking. Referred to the House Committee on Natural Resources and House Committee on Science, Space, and Technology.

H.R. 5875: To amend the Pittman-Robertson Wildlife Restoration Act and the Dingell-Johnson Federal Aid in Sport Fish Restoration Act, to provide parity for United States territories and the District of Columbia. Referred to the House Committee on Natural Resources.

H.R. 5874: To amend the Indian Health Care Improvement Act to improve the recruitment and retention of employees in the Indian Health Service, restore accountability in the Indian Health Service, improve health services, and for other purposes. Referred to the House Committee on Energy and Commerce, House Committee on Natural Resources, and 2 other committees.

REGULATORY: Includes USDA, FWS, NOAA and RBCS rules and notices.

AGRICULTURE DEPARTMENT: Notice announces the USDA, NFC’s intention to request a review of a currently approved information collection for the Direct Premium Remittance System (DPRS) Form DPRS-2809. Info here.

FISH AND WILDLIFE SERVICE: Notice that in notice document 2018-10536 appearing on pages 22988-22989 in the issue of May 17, 2018, make the following correction: On page 22988, in the first column, the Subject Heading is corrected to read as set forth above. Details here.


Notice NMFS is seeking information regarding nations whose vessels are engaged in illegal, unreported, or unregulated fishing, bycatch of protected living marine resources, and/or fishing activities in waters beyond any national jurisdiction that target or incidentally catch sharks. Info here.

Notice NMFS has received a request from Washington State Department of Transportation for authorization to take marine mammals incidental to the Seattle Multimodal Project at Colman Dock in Seattle, Washington. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice seeks applications for loans and grants under the Rural Economic Development Loan and Grant Programs for fiscal year (FY) 2018, subject to the availability of funding. Info here.