A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
JUDICIAL: Includes energy and food labeling issues.
In Superior Fuels, Inc. v. Nationwide Agribusiness Ins. Co., No. 14-CV-1420-SMY-PMF, 2016 WL 4366468 (S.D. Ill. Aug. 16, 2016), defendant issued plaintiff an insurance policy providing property and general liability coverage. During the course of coverage, plaintiff purchased biodiesel fuel, purported to be B100 fuel with Renewable Identification Numbers (RIN). Plaintiff sold fuel and attached RINs to its customers presuming the RINs were valid. However, EPA declared a series of RINs attached to the fuel invalid. Plaintiff received claims from customers for compensation for the invalid RINs, but defendant refused to defend the claims under the insurance policy. Court reasoned that, “When determining whether an insurance provider has a duty to defend, a court should apply an ‘eight corners rule.’ Farmers Auto. Ins. Ass’n v. Country Mut. Ins. Co., 722 N.E.2d 1228, 1232 (Ill. 2000). The four corners of the underlying complaint are compared with the four corners of the insurance contract, and the court must determine whether the facts alleged in the underlying complaint fall within, or potentially within, the insurance policy’s coverage.” Court found RINs were not “covered property” under the policy and defendant had “no duty to defend” under the policy.
In Kacocha v. Nestle Purina Petcare Co., No. 15-CV-5489 (KMK), 2016 WL 4367991 (S.D.N.Y. Aug. 12, 2016), plaintiff filed class action under § 349 of the New York General Business Law (GBL) on behalf of consumers who purchased defendant’s dog treats alleged to have been “deceptively marketed as being predominantly made out of bacon.” Defendant countered that plaintiff’s complaint failed the “’reasonable consumer test,’ because Plaintiff lacks standing, and because the advertisements consist of nonactionable puffery.” Court reasoned that, “Puffery is an exaggeration or overstatement expressed in broad, vague, and commendatory language,” consisting of “generalized or exaggerated statements which a reasonable consumer would not interpret as a factual claim upon which he could rely.” The court concluded that the “bacon content of Defendant’s product is not a ‘[s]ubjective claim[ ] … which cannot be proven either true or false,’ and it is not a “vague statement[ ] of a product’s superiority.” Court denied defendant’s motion to dismiss on grounds of “puffery.”
REGULATORY: Includes USDA, APHIS, FS and NOAA rules and notices.
AGRICULTURE DEPARTMENT: Notice USDA announces a meeting of the Advisory Committee on Biotechnology and 21st Century Agriculture (AC21). Info here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE:
Notice announcing APHIS will request a revision to and extension of approval of an information collection associated with tuberculosis regulations. Info here.
Notice of an upcoming meeting of the Secretary’s Advisory Committee on Animal Health. Info here.
FOREST SERVICE:
Notice Berlaimont Estates LLC owns a 680-acre private inholding within the White River National Forest to the north of Interstate 70 in the vicinity of Edwards, Colorado. Info here.
Notice the Tongass National Forest is proposing to charge a $75 fee for the overnight rental of the Deep Bay Cabin. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule This action proposes modifications to the Southern Scup Gear Restricted Area, as recommended by the Mid-Atlantic Fishery Management Council. Info here.
Notice the Mid-Atlantic Fishery Management Council’s Spiny Dogfish Advisory Panel will meet to review recent fishery performance and develop a Fishery Performance Report and recommendations for the Council’s review of specifications at the October 2016 Council meeting. Details here.
Notice the Pacific Fishery Management Council’s Salmon Technical Team and Model Evaluation Workgroup will hold a webinar to discuss issues on the Council’s September 2016 agenda. Details here.