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 international trade, animal welfare, and food labeling issues.

AN GIANG FISHERIES IMPORT AND EXPORT JOINT STOCK COMPANY et al., Plaintiffs and Consolidated Plaintiffs, and Vietnam Association of Seafood Exporters and Producers et al., Plaintiff–Intervenor and Consolidated Plaintiff–Intervenors, v. UNITED STATES, Defendant, and Catfish Farmers of America et al., Defendant–Intervenors and Consolidated Defendant–Intervenors, No. 14–00109, 2018 WL 2382792 (Ct. Intl. Trade May 24, 2018) concerned the Department of Commerce’s calculation of a “surrogate value” for plaintiff’s fish oil byproduct. Plaintiff challenged Commerce’s use of a “constructed value” and argued it was unreasonable to set aside Indonesian import data “because that data is not overbroad and its value is not unreasonably high.” Defendant countered that constructing a value in this case “resulted in the most accurate surrogate value available on this record.” Court was satisfied with Commerce’s explanation as to why it deviated from its “usual practice” and concluded “the method used by the agency to construct a value in this case is reasonable.”

In STATE of Arizona EX REL. WILLIAM MONTGOMERY, Maricopa County Attorney, Petitioner, v. The Honorable Mark H. BRAIN, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Shundong Hu, Real Party in Interest, No. 1 CA-SA 17-0186, 2018 WL 2348473 (Ariz. Ct. App. May 24, 2018), police responded to reports of animal cruelty after plaintiff struck his dog with a metal rod. Plaintiff was later charged with animal cruelty and the State alleged the crime was a “dangerous offense” because it “involved the discharge, use, or threatening exhibition of a pole and/or rod, a deadly weapon or dangerous instrument.” Defendant moved to dismiss the dangerousness allegation, claiming “a dangerous offense cannot be committed against an animal.” Court reasoned that the legislature’s purpose in drafting the dangerous offense definition “was to enhance crimes as ‘dangerous offenses’ to protect human life.” Court found for defendant after concluding that “the use of a dangerous instrument in the context of animal cruelty does not qualify as a dangerous offense.”

ANIMAL LEGAL DEFENSE FUND, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE (“USDA”), et al., Defendants, No. 17-cv-03903-PJH, 2018 WL 2387812 (N.D. Cal. May 25, 2018) involved the Freedom of Information Act (FOIA), after plaintiff requested that USDA-APHIS inspect a gas station to determine if it was in violation of the Animal Welfare Act for “failure to provide adequate veterinary care” for a tiger on the premises. Defendants argued the tiger “is not considered an ‘individual’ under the FOIA because “the term ‘individual’ in this matter only encompasses human beings.” Here, plaintiff sought a declaration that defendants “unlawfully failed to comply with the expedited processing requirements” of FOIA when claiming the term “individual” . . . encompasses human beings only.” Issue for the court was whether the term “individual” as used in the FOIA statute “encompasses nonhuman animals.” Court considered the definition of the term “individual” and concluded that “[b]ecause defendants are administrative bodies with responsibilities primarily relating to nonhuman animals, Congress may have nearly excused them from the FOIA’s expedited review requirements without specifically intending to do so.” Summary judgment for plaintiff denied.

EAT RIGHT FOODS, LTD, Plaintiff, v. WHOLE FOODS MARKET, INC., et al., Defendants, NO. C13-2174 RSM, 2018 WL 2387638 (W.D. Wash. May 25, 2018) involved trademark infringement after plaintiff claimed it used the trademark “EATRIGHT” since 2003. Plaintiff alleged defendants sold products using a trademark confusingly similar to “EATRIGHT” without permission, in violation of federal trademark laws and Washington’s Consumer Protection Act. Lower court found for defendants after they claimed affirmative defenses of laches and acquiescence. On appeal, court noted defendants “invested a significant amount of time and money in, and heavily promoted, the . . . Eat Right America diet and nutritional programs at its stores.” Court also observed that plaintiff “encouraged the Eat Right America program . . . acknowledging that its brand had benefited from the program, and assuring Defendants that it had taken action to protect Defendants’ use of the mark.” Summary judgment for defendant affirmed.


PUBLICATION 3373 (REV. 4-2018) DIFSLA HANDBOOK. For use in preparing 2018 Returns. The purpose of this Handbook is to notify officers and employees of Federal, State, and local agencies that administer certain programs, of procedures for obtaining tax return information from the Internal Revenue Service (IRS) through the DIFSLA program. Download the document here.

REGULATORY: Includes USDA, APHIS, EPA, FNA, and RBCS rules and notices.


Notice USDA has submitted information collection requirement(s) to OMB for review. Title: The Integrity Program (TIP) Data Collection. Details here.

Notice uses OMB control number 0580-0022, which has since been changed to OMB control number 0581-0306 due to the realignment of offices authorized by the Secretary’s memorandum dated November 14, 2017. This Secretary’s memorandum eliminated the Grain Inspection, Packers and Stockyard Administration as a standalone agency it is now organized under the Agricultural Marketing Service. This document corrects the notice by updating the OMB control number. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the interstate movement of regulated articles to prevent the spread of the pale cyst nematode to noninfested areas of the United States. Info here.


Rule EPA is approving elements of New Jersey’s State Implementation Plan (SIP) revision submittal regarding the infrastructure requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 lead, 2008 ozone, 2010 nitrogen dioxide, 2010 sulfur dioxide, 2011 carbon monoxide, 2006 particulate matter of 10 microns or less , and 2012 particulate matter of 2.5 microns or less National Ambient Air Quality. Info here.

Rule EPA is revising regulations associated with the definition of solid waste under the Resource Conservation and Recovery Act. Info here.

Rule EPA is requesting public comment on several proposed changes to the final Risk Management Program Amendments rule issued on January 13, 2017. Details here.

FOOD AND NUTRITION SERVICE: Notice invites the general public and other public agencies to comment on a proposed information collection. This is a revision of a currently approved information collection from organizations fighting hunger and poverty. Info here.


Notice announces that the Rural Business-Cooperative Service is accepting fiscal year (FY) 2018 applications for the Rural Cooperative Development Grant program. Details here.

Notice announces that the Rural Business-Cooperative Service is accepting fiscal year (FY) 2018 applications for the Socially-Disadvantaged Groups Grant program. Info here.