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

JUDICIAL: Includes food labeling issues.

In UNITED STATES, Appellee, v. Joseph W. PUGH, Major, United States Air Force, Appellant, No. 17-0306, Misc. Dkt. No. 2016-11, 2017 WL 5495405 (Armed Forces App. November 7, 2017), appellant was convicted of “willful dereliction of duty” after eating “Strong & KIND bars” containing hemp seeds that are prohibited by the Air Force under Dep’t of the Air Force, Instr. 90-507, Military Drug Demand Reduction Program (AFI). Appellant moved to dismiss, arguing the AFI was “not a lawful order.” Air Force Court of Criminal Appeals reinstated Appellant’s willful dereliction of duty conviction and appellate court considered whether the military judge erred in finding the AFI at issue “serves no valid military purpose.” Appellate court found that “although AFI 90-507 may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.” Lower court reversed.

In NICK YELDO, Plaintiff, v. MUSCLEPHARM CORP., Defendant, No. 17-11011, 2017 WL 5499588 (E.D. Mic. November 16, 2017), plaintiff claimed defendant’s dietary supplements provided no benefits as claimed and sued for false advertising. Plaintiff sought to certify both a national class and a state class of plaintiffs impacted by defendant’s product. Defendant moved to dismiss, arguing plaintiff’s claims are preempted by the Federal Food, Drug and Cosmetic Act (FDCA). Court noted that plaintiff’s state law claims alleging false and misleading labels and advertising, “parallel the FDCA’s requirements.” Court concluded plaintiff’s claims “are premised on conduct that would give rise to liability under Michigan common law even if the FDCA had never been enacted,” and therefore, “are not preempted by the FDCA.” Motion to dismiss granted in part.

LEGISLATIVE:

S. 2142: A bill to amend the Energy Policy and Conservation Act to establish the CHP Technical Assistance Partnership Program, and for other purposes. Bill referred to the Senate Committee on Energy and Natural Resources which will consider it before sending it to the Senate floor for consideration.

S. 2160: A bill to establish a pilot program under the Chief of the Forest Service may use alternative dispute resolution in lieu of judicial review of certain projects. Bill referred to the Senate Committee on Energy and Natural Resources which will consider it before sending it to the Senate floor for consideration.

S. 2146: A bill to extend the full Federal medical assistance percentage to urban Indian organizations. Bill referred to the Senate Committee on Indian Affairs.

S. 2154: A bill to approve the Kickapoo Tribe Water Rights Settlement Agreement, and for other purposes. Bill referred to the Senate Committee on Indian Affairs.

S. 2153: A bill to amend title 23, United States Code, to establish electric vehicle weight limitations. Bill referred to the Senate Committee on Environment and Public Works.

S. 2140: A bill to provide for an exchange of Federal land and non-Federal land in the State of Idaho. Bill referred to the Senate Committee on Energy and Natural Resources.

S. 2151: A bill to streamline the oil and gas permitting process and to recognize fee ownership for certain oil and gas drilling or spacing units. Bill referred to the Senate Committee on Energy and Natural Resources.

S. 2137: A bill to amend the Rural Development Act of 1972 to improve access to grants for evidence-based substance use disorder treatment services in rural areas. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2139: A bill to amend the Food Security Act of 1985 to address critical conservation conditions under the regional conservation partnership program, and for other purposes. This bill was referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 4448: To provide for an exchange of Federal land and non-Federal land in the State of Idaho. This bill was referred to the House Committee on Natural Resources.

H.R. 4419: To facilitate and streamline the Bureau of Reclamation and Bureau of Indian Affairs processes for creating or expanding certain water projects. Bill referred to the House Committee on Natural Resources.

H.R. 4420: To amend the Food Security Act of 1985 to address critical conservation conditions under the regional conservation partnership program. Bill referred to the House Committee on Agriculture.

H.R. 4429: To direct the Secretary of the Interior to reissue a rule relating to extension of the expiration dates for double-crested cormorant depredation orders. Bill referred to the House Committee on Natural Resources.

H.R. 4444: To amend the Internal Revenue Code of 1986 to create a Pension Rehabilitation Trust Fund, to establish a Pension Rehabilitation Administration within the Department of the Treasury to make loans to multiemployer defined benefit plans. Bill referred to the House Committee on Appropriations, House Committee on Education and the Workforce, and one other committee.

H.R. 4417: To amend the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998 to address harmful algal blooms. Bill referred to the House Committee on Natural Resources and House Committee on Science, Space, and Technology.

H.R. 4436: To authorize the Secretary of the Interior to study the suitability and feasibility of designating Caguana Indigenous Ceremonial Park and Tibes Indigenous Ceremonial Center, as units of the National Park System. Bill referred to the House Committee on Natural Resources.

H.R. 4425: To reform the safety net for farmers and ranchers, enhance soil, water, and habitat conservation, encourage beginning farmers and ranchers, strengthen nutrition for Americans, support agriculture research and innovation, reduce food waste. This bill was referred to the House Committee on Agriculture, House Committee on Education and the Workforce, and 2 other committees.

H.R. 4426: To reform Federal onshore and offshore fossil fuel leasing, exploration, and development; promote renewable energy on public lands; prepare for the impacts of climate change; increase industry accountability. This bill was referred to the House Committee on Agriculture, House Committee on Education and the Workforce, and 5 other committees.

H.R. 2907: Planning for American Energy Act of 2017. Bill’s text for status Reported by House Committee (Nov 16, 2017) is now available.

REGULATORY: Includes USDA, EPA, FSIS, NOAA and RUS rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Importation of Fruits and Vegetables. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: WIC Farmers’ Market Nutrition Program (FMNP) Forms and Regulations. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is withdrawing the September 27, 2017 direct final rule that approved a revision to the Delaware state implementation plan (SIP) related to the interstate transport of air pollution for the 2008 ozone national ambient air quality standards. Info here.

Rule EPA is withdrawing the direct final rule for “Approval of Implementation Plans; State of Iowa; Elements of the Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter National Ambient Air Quality Standard (NAAQS)” published in the Federal Register on September 29, 2017. Info here.

Rule EPA is withdrawing the September 28, 2017 direct final rule (DFR) that approved a revision to the Virginia state implementation plan (SIP). Info here.

Rule EPA is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Arkansas to address the requirements of section 110(a)(1) and (2) of the Clean Air Act for the 2006 and 2012 fine particulate matter National Ambient Air Quality Standards. Details here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS will collect information from focus groups on consumer food safety knowledge, attitudes, and practices and to elicit consumer responses to FSIS food safety messages and determine their impact on consumer food safety knowledge and behavior. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMNISTRATION:

Rule NMFS is reapportioning the projected unused amount, 404 Chinook salmon prohibited species catch limit, from the vessels participating in directed fishing for pollock in the Central Regulatory area of the Gulf of Alaska (GOA) to vessels participating in directed fishing for pollock in the Western Regulatory area of the GOA. Info here.

Rule NMFS is exchanging allocations of Amendment 80 cooperative quota (CQ) for Amendment 80 acceptable biological catch (ABC) reserves. Info here.

Rule NMFS is prohibiting directed fishing for Pacific Ocean perch in the Eastern Aleutian district (EAI) of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access fishery. Details here.

Rule NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Details here.

RURAL UTILITIES SERVICE: Notice RUS is announcing funding availability and is soliciting letters of intent for loan applications under the Rural Energy Savings Program (RESP), announcing the application process for those loans and deadlines for applications from eligible entities. Info here.