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 labeling, AWA, AMAA, and dog law issues.
Zapata Fonseca v. Goya Foods Inc., No. 16-CV-02559-LHK, 2016 WL 4698942 (N.D. Cal. Sept. 8, 2016) plaintiff filed class action after defendant sold four products labeled as “octopus.” Plaintiff argued products were squid instead of octopus, and that defendant “intentionally replaced the octopus with squid to save money because it knew an ordinary consumer would have trouble distinguishing the difference.” Defendant moved to dismiss the case claiming plaintiff lacked standing to sue on all four products as he only purchased two of the four octopus products. The court observed that “the Ninth Circuit has never held that a plaintiff must buy every product in a product line in order to have standing to bring a class action lawsuit.” The court further reasoned that a “plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” The court found that “the Octopus Products are substantially similar to one another,” and denied defendant’s motion to dismiss.
In Kollman v. Vilsack, No. 8:14-CV-1123-T-23TGW, 2016 WL 4702426 (M.D. Fla. Sept. 8, 2016), an animal trainer sued USDA under the Animal Welfare Act (AWA). Plaintiff sued for a declaration that at a circus maintained by his employer, he could publicly perform with a tiger because he was not an “exhibitor” under the rule. Plaintiff attempted to distinguish the verb “exhibit” from the verb “present.” Court was unpersuaded and granted defendants motion for summary judgment.
In Burnette Foods, Inc. v. United States Dep’t of Agric., No. 1:16-CV-21, 2016 WL 4708629 (W.D. Mich. Sept. 9, 2016), plaintiff processed canned cherries and filed a petition with the USDA requesting “modification of, and exemption from, the Tart Cherry Order.” Plaintiff asserted that per the Order, the formula for determining supply levels is “arbitrary and capricious” and argued sales restrictions on cherries amounted to a “taking.” The court reasoned, however, that the plaintiff “has not alleged that the Government ever took title or possession of Plaintiff’s cherries. Rather, Plaintiff retained possession of the cherries, but had to maintain the inventory as ‘unsalable.’” Court dismissed plaintiff’s claim, concluding that “the Tart Cherry Order was not ‘confiscatory,’ or did not constitute an unconstitutional taking.”
In Barbara Keith, Andrea Shatto, Margaret Ehmann & the Animal Legal Def. Fund, Petitioners v. Commonwealth of Pennsylvania, by & through, Pennsylvania Dep’t of Agric. & Sec’y of Agric. George Greig, Respondents, No. 394 M.D. 2014, 2016 WL 4709198 (Pa. Commw. Ct. Sept. 9, 2016), plaintiffs challenged contradictions in the Pennsylvania Department of Agriculture’s dog laws. Plaintiffs alleged that while one section of the Dog Law prohibits use of “metal strand flooring,” another section of the Department’s regulations, pertaining to nursing mothers, permitted “the primary enclosure for nursing mothers to include 50% metal strand flooring.” Court found that the state’s Dog Law “contains an express prohibition against the use of metal strand flooring.” Court ruled for plaintiff, finding the Department’s regulations “directly contradict these express statutory provisions and violate the legislative intent.” Court ruled the regulations invalid.
LEGISLATIVE:
S. 1448: Frank Moore Wild Steelhead Sanctuary Designation Act. This bill’s text for status Reported by Senate Committee (Sep 8, 2016) is now available.
S. 2848: Water Resources Development Act of 2016. This bill was added to the Senate’s floor schedule for the next legislative day.
H.R. 4245: To exempt exportation of certain echinoderms and mollusks from licensing requirements under the Endangered Species Act of 1973. This bill’s text for status Received by the Senate (Sep 7, 2016) is now available.
H.R. 5954: Limiting Inhumane Federal Trapping for Public Safety Act. This bill was referred to the House Committee on Agriculture and House Committee on Natural Resources which will consider it before sending it to the House. Sponsor: Rep. Earl Blumenauer [D-OR3].
H.R. 5976: To provide for the issuance of a semipostal to support Department of Agriculture conservation programs, and for other purposes. This bill was referred to the House Committee on Agriculture and House Committee on Oversight and Government Reform which will consider it before sending it to the House. Sponsor: Rep. David Young [R-IA3].
REGULATORY: Includes AMS, APHIS, CCC, FSA, FDA, FSIS, FAS, FS, ITA, and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE: Rule implementing a recommendation from the Almond Board of California to increase the assessment rate established for the 2016-17 through the 2018-19 crop years from $0.03 to $0.04 per pound of almonds handled under the marketing order. 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 the regulations for the interstate movement of horses that have tested positive for equine infectious anemia. Info here.
COMMODITY CREDIT CORPORATION:
Rule CCC revises regulations governing the award of agricultural commodities to recipients under the Food for Progress Program. Details here.
Notice CCC and FSA request comments from interested individuals and organizations on an extension of an approved information collection. Info here.
FARM SERVICE AGENCY: Notice CCC and FSA seek comments from interested individuals and organizations on an extension of a currently approved information collection. Info here.
FOOD AND DRUG ADMINISTRATION:
Notice FDA is publishing a list of information collections that have been approved by the Office of Management and Budget under the Paperwork Reduction Act of 1995. Info here.
Notice FDA requests nominations for voting members to serve on the Tobacco Products Scientific Advisory Committee, Office of Science, Center for Tobacco Products. Details here.
FOOD SAFETY AND INSPECTION SERVICE: Notice the Office of the Deputy Under Secretary for Food Safety, U.S. Department of Agriculture, and the Food and Drug Administration, U.S. Department of Health and Human Services, are sponsoring a public meeting on October 11, 2016. Info here.
FOREIGN AGRICULTURAL SERVICE: Rule FAS revises the regulations governing the award of agricultural commodities and financial and technical assistance to recipients under the McGovern-Dole International Food for Education and Child Nutrition Program. Details here.
FOREST SERVICE:
Notice USDA renewed the National Urban and Community Forestry Advisory Council. Info here.
Notice the USDA Forest Service is preparing the revised land management plan for the Rio Grande National Forest. Details here.
Notice The Nicolet Resource Advisory Committee will meet in Crandon, Wisconsin. Info here.
Notice The Yakutat Resource Advisory Committee will meet in Yakutat, Alaska. Info here.
Notice the Nez Perce—Clearwater National Forests will charge fees at a number of sites. Details here.
INTERNATIONAL TRADE ADMINISTRATION: Notice on March 10, 2016, the Department of Commerce published in the Federal Register the preliminary results of the tenth administrative review of the antidumping duty order on certain warmwater shrimp from Vietnam. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS issues this final rule to implement Amendment 103 to the Fishery Management Plan for Groundfish of the Gulf of Alaska. Info here.
Notice announcing NMFS will obtain information necessary to prepare an Environmental Impact Statement for eight Hatchery and Genetic Management Plans for ongoing salmon and steelhead hatchery programs jointly submitted by the Washington Department of Fish and Wildlife, the Puyallup Tribe of Indians, and the Muckleshoot Indian Tribe, for NMFS’ evaluation and determination under Limit 6 of the Endangered Species Act 4(d) Rule for threatened salmon and steelhead. Info here.
Notice the Pacific Fishery Management Council will convene a meeting of its Coastal Pelagic Species Subcommittee of the Scientific and Statistical Committee. Info here.