A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

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JUDICIAL: Includes FDA, settlement, and HEPA issues.

In In re KIND LLC “Healthy & All Natural” Litig., No. 15-MC-2645 (WHP), 2016 WL 4991471 (S.D.N.Y. Sept. 15, 2016), plaintiff claimed defendant deceptively marketed its products as “healthy,” “all natural,” and “non GMO.” The class action complaint alleged breach of express warranty, unjust enrichment, negligent misrepresentation, and violations of New York General Business Law and California’s Consumers Legal Remedies Act, among other claims. Plaintiffs hope to represent a national class of persons who purchased KIND products since 2011. Defendant moved to dismiss plaintiffs’ claims or, to stay the action pending FDA’s promulgation of rules addressing use of the word “natural” on food labels. Court dismissed plaintiffs’ “healthy” claims and stayed the “all natural” claims pending FDA’s rules. Plaintiff’s separate “non GMO” claim dismissed without prejudice.

In Bayer CropScience, LLC v. Stearns Bank Nat’l Ass’n, No. 15-1967, 2016 WL 5030340 (8th Cir. Sept. 20, 2016), plaintiff brought interpleader action to determine its obligations regarding a settlement reached with third party debtor (Texana). The settlement resulted from lawsuits arising when Bayer’s genetically modified rice entered into the US rice supply. Texana settled its commercial tort claim against Bayer and $933,697.90 remains. Parties in this appeal are bank creditors of debtor Texana, Stearns Bank and Amegy Bank, and both claim priority over the money. District court found for Amegy Bank, but appellate court reversed and remanded to district court to determine “what part of the sum held in the registry of the court constitutes proceeds of Stearns Bank’s original collateral and what part does not constitute such proceeds.”

In Umberger v. Dep’t of Land & Nat. Res., No. CAAP-13-0002125, 2016 WL 4555838 (Haw. Ct. App. Aug. 31, 2016), as corrected (Sept. 1, 2016), plaintiffs appealed summary judgment for defendant and sought order requiring lower court to issue a declaratory judgment concluding that DLNR violated the Hawai’i Environmental Policy Act (HEPA) for not complying with the statute when approving aquarium collection permits. Appellate court observed that “the alleged ‘action’ at issue here is the ‘taking of marine or freshwater nongame fish and other aquatic life for aquarium purposes.’” Court found that “aquarium collection under an aquarium fish permit issued by DLNR is not an ‘applicant action’ under HEPA.” Summary judgment for defendant affirmed.

In CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiff, v. AGRICULTURAL MANAGEMENT AND PRODUCTION COMPANY, INC., & ROBERT SMYTHE, Defendants., No. 2:14-CV-02328-KJMAC, 2016 WL 4796841 (E.D. Cal. Sept. 14, 2016), court approved parties’ stipulation to dismiss plaintiff’s claims against defendants Agricultural Management and Production Company, Inc., and Robert Smythe with prejudice under Federal Rule of Civil Procedure 41(a)(2).

LEGISLATIVE:

H.R. 5346: Securing our Agriculture and Food Act. This bill’s text for status Reported by House Committee (Sept. 19, 2016) is now available.

REGULATORY: Includes AMS, FS, NOAA and RUS rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implementing a recommendation from the California Date Administrative Committee for a decrease in the assessment rate established for the 2016-17 and subsequent crop years from $0.10 to $0.05 per hundredweight of dates handled. Details here.

Rule implementing a recommendation from the Washington Cherry Marketing Committee increasing the assessment rate established for the 2016-2017 and subsequent fiscal periods from $0.15 to $0.25 per ton of Washington cherries handled. Info here.

FOREST SERVICE: Notice FS published a notice of intent to prepare an environmental impact statement in the Federal Register of September 12, 2016. The document contains confusing language regarding establishing standing for participation in the agency’s administrative review process. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is exchanging unused flathead sole and rock sole Community Development Quota for yellowfin sole CDQ acceptable biological catch reserves in the Bering Sea and Aleutian Islands management area. Info here.

Rule NMFS is prohibiting retention of shortraker rockfish in the Western Regulatory Area of the Gulf of Alaska. Details here.

RURAL UTILITIES SERVICE: Notice RUS administers rural utilities programs, including the Telecommunications Program. RUS announces the depreciation rates for telecommunications plant for the period ending December 31, 2015. Info here.