A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
ANNOUNCEMENT: Join us tomorrow at 12 noon (ET) for a free webinar: CWA, 404 & WOTUS: Navigating Wetlands Issues in Agriculture. Details and sign-in information here.
JUDICIAL: Includes water rights, FDA and ESA issues.
Bentley v. State, Office of State Eng’r, No. 64773, 2016 WL 3856572 (Nev. July 14, 2016) involved appeals from orders denying petitions for judicial review of the State Engineer’s water use rotation schedules and a decree affirming defendant’s order of determination of water rights. Appellate court affirmed and found district court had jurisdiction to consider the rotation schedules and that the defendant “acted within his capacity as an officer of the court in enforcing the district court’s order imposing a rotation schedule and did not act arbitrarily and capriciously.”
In TROY BACKUS, on behalf of himself & all others similarly situated, Plaintiff, v. CONAGRA FOODS, INC., Defendant., No. C 16-00454 WHA, 2016 WL 3844331 (N.D. Cal. July 15, 2016), plaintiff filed class action suit against defendant’s use and labeling of artificial trans-fat in margarine products. Complaint alleged defendant’s use of trans-fat is “unlawful” and that its labels misrepresented the product. Court granted defendant’s motion to dismiss in part and determined that partially-hydrogenated oils are “widely treated as Generally Recognized As Safe (GRAS), at least by the food industry, and the FDA has permitted their continued use until 2018.” Moving forward, plaintiff’s “unlawful” claim cannot rely on Federal law.
In ROHINI KUMAR, individually & on behalf of the general public & those similarly situated, Plaintiff, v. SALOV NORTH AMERICA CORP., Defendants., No. 14-CV-2411- YGR, 2016 WL 3844334 (N.D. Cal. July 15, 2016), plaintiff sought class certification for purchasers of olive oil based on alleged mislabeling as “Imported from Italy.” Court applied the “reasonable consumer” test, requiring plaintiff to show that a “‘reasonable consumer’ is likely to be deceived by the business practice or advertising at issue.” Plaintiff argued she can prove defendant’s packaging violates FDA regulations which provide, “food is misbranded if its label expresses or implies a geographical origin of the food or any ingredient of the food except when such representation is ‘[a] truthful representation of geographical origin.’” Court granted plaintiff’s motion for class certification.
In Desert Survivors v. US Dep’t of the Interior, No. 16-CV-01165-JCS, 2016 WL 3844332 (N.D. Cal. July 15, 2016), plaintiffs sued to protect the Bi-State Sage-Grouse (BSSG), alleging defendants improperly withdrew a proposed rule that the BSSG be listed as a threatened species under the Endangered Species Act. Defendants sought to transfer venue from Northern District of California to Eastern District of California claiming the BSSG “inhabits portions of the Eastern District of California, and most of the challenged rulemaking occurred in the Eastern District of California.” Court reasoned that in similar environmental protection cases a “’substantial part’ of the events giving rise to a claim could be found where the protected species is located or where past litigation and agency action relating to the issue occurred. A substantial part of the events giving rise to a claim can occur in multiple districts, which, in turn, support venue in more than one place.” Court denied defendants’ motion to transfer venue concluding venue is proper in both California Districts.
REGULATORY: Includes APHIS, EPA, FNS, FS, GIPSA and NMFS rules and notices.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS prepared a pest risk analysis evaluating risks associated with importation of fresh star apple fruit from Vietnam into the continental United States. Info here.
ENVIRONMENTAL PROTECTION AGENCY: Rule announcing EPA’s approval of alternative testing methods for use in measuring levels of contaminants in drinking water and determining compliance with national primary drinking water regulations. Details here.
FOOD AND NUTRITION SERVICE: Notice inviting comment on a proposed information collection for the Food Distribution Program on Indian Reservations. Info here.
FOREST SERVICE: Notice FS is publishing a final directive revising Forest Service Manual 2350 to establish training, evaluation, and certification requirements for use of chain saws and crosscut saws on National Forest System lands. Details here.
GRAIN INSPECTION, PACKING AND STOCKYARDS ADMINISTRAION: Notice GIPSA announces designation of California Agri Inspection Co., Ltd., and Virginia Department of Agriculture and Consumer Services to provide official services under USGSA. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS implements accountability measures for the gray triggerfish recreational sector in the exclusive economic zone of the Gulf of Mexico for 2016 fishing year. Info here.
Rule that the North Pacific Fishery Management Council submitted Amendment 113 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area to the Secretary of Commerce for review. Info here.