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 class action, FDCA, water rights, and PACA issues.
In re: Syngenta Ag Mir 162 Corn Litig., No. 14-MD-2591-JWL, 2016 WL 5371856 (D. Kan. Sept. 26, 2016) concerned plaintiffs’ motion for class certification. Plaintiffs’ counsel filed complaints on behalf of producers and non-producers of corn in United States, asserting claims against Syngenta regarding commercialization of its corn seed products, Viptera and Duracade. The products contained the genetic trait MIR 162. Plaintiffs allege Syngenta’s commercialization of its products caused corn containing MIR 162 “to be commingled throughout the corn supply in the United States and that China rejected imports of all corn from the United States because of the presence of MIR 162.” In turn, corn prices dropped impacting plaintiffs. Plaintiffs asserted claims under the Lanham Act and state-law. Court concluded that “certification of one nationwide class and eight statewide classes is appropriate under FRCP 23,” and granted plaintiff’s motion certifying the class.
JOHANNA SAVALLI, on behalf of herself & all others similarly situated, Plaintiff, vs. GERBER PRODUCTS COMPANY, Defendant., No. 15-61554-CIV-ZLOCH, 2016 WL 5390223 (S.D. Fla. Sept. 20, 2016) involved a class action wherein plaintiff argued she was “hoodwinked by the labeling on Defendant’s ‘cereal snack’ product,” alleging she was deceived into believing the product contained “significant amounts of real fruit or vegetables.” The court considered whether a reasonable consumer would likely be confused by the labeling on the product and observed that “federal law places certain requirements on the contents of labels affixed to the packaging of those food products. In turn, to understand what they are purchasing, reasonable consumers should——well, read the label.” The court considered the Food, Drug and Cosmetic Act (FDCA) and the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) in its analysis, noting that the “FDCA considers a food product misbranded if its labeling is “false or misleading in any particular manner,” and concluded plaintiff’s claims were “either preempted by federal law or fail as a matter of state law.”
In People v. Davis, No. C080545, 2016 WL 5390153 (Cal. Ct. App. Sept. 27, 2016), defendant allegedly diverted water from a stream to cultivate marijuana. He appealed a misdemeanor conviction of “petty theft of water,” arguing there was no theft because the natural stream at issue was “nuisance groundwater that the owner was diverting from its property, and the State of California has only a regulatory interest in use of these public waters that otherwise are not personalty that can be the subject of a larceny.” The court pontificated that, “To get our metaphysics up and running, there is no ownership of water, gas, or oil on the land other than in usufruct,” and reasoned that, “While . . . the identity of the actual owner is not an element of larceny, and the exact nature of the superior possessory interest is also immaterial, there must be a superior possessory interest of some kind.” The court also observed, “Unlike crops or oil, individual particles of water flowing upon one’s realty are not personalty unless captured.” The court reversed defendant’s conviction for petty theft of water, concluding that “a possessory interest superior to defendant did not exist when he diverted the water from the railroad’s realty.”
In JACOBS SILVER K FARMS, INC., et al., Plaintiffs, v. TAYLOR PRODUCE, LLC, et al., Defendants., No. 4:13-CV-535-BLW, 2016 WL 5387624 (D. Idaho Sept. 24, 2016), plaintiffs delivered $1 million worth of produce to defendant, but were never paid and sued under the Perishable Agricultural Commodities Act (PACA). (Plainitff also sued second set of defendants, “Nonpareil Defendants.”) Here, plaintiffs sought judgment under FRCP 54(b) against defendant (Taylor Produce) declaring that plaintiff had satisfied requirements for establishing a PACA Trust. Trial court ruled that “(1) the PACA notices were sufficient, and (2) [Plaintiff] had a valid PACA Trust claim over Taylor Produce in the amount of $1,327,478.16.” Appellate court observed that Rule 54(b) “gives the Court discretion to grant a final judgment as to one or more, but fewer than all, claims if ‘there is no just reason for delay.’” Plaintiff’s motion granted.
LEGISLATIVE:
H.R. 6167: To amend the Internal Revenue Code of 1986 to authorize agricultural producers to establish and contribute to tax-exempt farm risk management accounts. Bill referred to House Committee on Ways and Means which will consider it before sending it to the House. Sponsor: Rep. Eric “Rick” Crawford [R-AR1].
H.R. 6171: To amend the Food and Nutrition Act of 2008 to eliminate the authority of the Secretary of Agriculture to grant a waiver from the work requirements for participation in the supplemental nutrition assistance program. Bill referred to the House Committee on Agriculture which will consider it before sending it to the House. Sponsor: Rep. Glenn Grothman [R-WI6].
H.R. 5883: Clarification of Treatment of Electronic Sales of Livestock Act of 2016. Bill passed in the House on September 26, 2016 and goes to the Senate next for consideration.
H.R. 845: National Forest System Trails Stewardship Act. Bill passed in the House on September 26, 2016 and goes to the Senate next for consideration.
H.R. 5346: Securing our Agriculture and Food Act. Bill passed in the House on September 26, 2016 and goes to the Senate next for consideration.
REGULATORY: Includes AMS, FSA, FDA, FNS, FS, NOAA, RBCS, RHS, and RUS rules and notices.
AGRICULTURAL MARKETING SERVICE: Notice USDA will submit information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Title: AMS Grant Programs. Details here.
FARM SERVICE AGENCY: Rule correcting 7 CFR part 1940, subpart L, “Methodology and Formulas for Allocation of Loan and Grant Program Funds” to provide reference to the Rural Business Development Program. Details here.
FOOD AND DRUG ADMINISTRATION:
Rule FDA announces availability of a guidance for industry entitled “Use of the Term ‘Healthy’ in the Labeling of Human Food Products: Guidance for Industry.” Details here.
Rule FDA announces establishment of a docket to receive information and comments on the use of the term “healthy” in the labeling of human food products. Info here.
FOOD AND NUTRITION SERVICE: Rule amending FNS regulations to implement USDA final guidance of USDA-specific requirements in the Federal Agency Regulations for Grants and Agreements. Info here.
FOREST SERVICE:
Notice the Eastern Region Recreation Resource Advisory Committee will meet in Cleveland, Ohio. Info here.
Notice the Lake Tahoe Basin Federal Advisory Committee will meet in South Lake Tahoe, California. Details here.
Notice the Land Between the Lakes Advisory Board will meet in Golden Pond, Kentucky. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Notice NMFS announces: (1) Its intent to prepare an Environmental Assessment to analyze the environmental impacts of issuing annual incidental harassment authorizations for the 2017 season; and (2) its intent to continue an annual cycle for issuing MMPA IHAs in Cook Inlet. Details here.
Notice NMFS has issued a determination, under the Dolphin Protection Consumer Information Act, of regular and significant mortality and serious injury of dolphins in gillnet fisheries harvesting tuna by vessels flagged under the Governments of India, Iran, Mozambique, Pakistan, Oman, Saudi Arabia, Sri Lanka, Tanzania, the United Arab Emirates, and Yemen. Info here.
RURAL BUSINESS-COOPERATIVE SERVICE: Rule correcting 7 CFR part 1940, subpart L, “Methodology and Formulas for Allocation of Loan and Grant Program Funds” to provide reference to the Rural Business Development Program, which replaced the Rural Business Enterprise Grant program and the Rural Business Opportunity Grant program. Info here.
RURAL HOUSING SERVICE: Rule correcting 7 CFR part 1940, subpart L, “Methodology and Formulas for Allocation of Loan and Grant Program Funds” to provide reference to the Rural Business Development Program, which replaced the Rural Business Enterprise Grant program and the Rural Business Opportunity Grant program. Info here.
RURAL UTILITIES SERVICE: Rule correcting 7 CFR part 1940, subpart L, “Methodology and Formulas for Allocation of Loan and Grant Program Funds” to provide reference to the Rural Business Development Program, which replaced the Rural Business Enterprise Grant program and the Rural Business Opportunity Grant program. Info here.