Ag and Food Law Daily Update: September 19, 2022

A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.

JUDICIAL: Includes Clean Water Act, Food Labeling

In Michigan Farm Bureau v. Department of Environment, — NW2d —, 20-cv-000148-MZ, 2022 WL 428157 (MI Ct. App. 2022), the Michigan Court of Appeals granted the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE’s) motion for summary disposition and dismissal. The Plaintiffs are several concentrated animal feeding operations (CAFOs), which under the Clean Water Act are considered point sources of pollution. In Michigan, persons or entities that discharge point sources of pollution into Michigan water sources must apply for and obtain a permit from EGLE. As point sources of water pollution, the Plaintiffs’ CAFOs were required to apply for and obtain EGLE permits. In 2020, EGLE reduced the amount of phosphorus permits are allowed to apply to land, announced a three-month ban on applying waste on land during the winter, among other conditions. The Plaintiffs argued that these added conditions exceeded EGLE’s statutory authority, are contrary to state and federal law, are arbitrary and capricious, and unconstitutional.

In 2020, the Plaintiffs filed for declaratory and injunctive relief in the Court of Claims. In response, EGLE filed a motion for summary disposition (summary judgment) on the grounds that Plaintiffs failed to exhaust all available administrative remedies. The Court of Claims agreed with EGLE and concluded it did not have subject-matter jurisdiction. The Michigan Court of Appeals held that the Court of Claims came to the correct conclusion, but its legal reasoning was erroneous.

In Paschoal v. Campbell Soup Company21-cv-07029-HSG, 2022 WL 4280645 (ND Cal. 2022), the Campbell Soup Company and Sun-Maid Growers of California (Defendants) produce and sell food packages for children 6 months and up under the brand “Plum Organics”. The Plaintiffs argue that the Plum Organics food labels contain unlawful nutrient content claims such as “3g Protein”, “4g Fiber”, and “200mg Omega-3 ALA from Chia”. The Court denied Sun-Maid’s motion to dismiss on the grounds that the Plaintiffs plausibly alleged standing, the primary jurisdiction doctrine does not apply, and that the Plaintiffs plausibly alleged that the nutrient content claims at issue are unlawful. However, the Court granted both defendants leave to amend.

In Sanchez v. Nurture, Inc.— F.Supp.3d —, 21-cv-08566-EJD, 2022 WL 4097337, the Plaintiff argues that the Defendant’s Happy Tot baby food is improperly labeled and misbranded because the labels contain nutrient content claims prohibited by the Food and Drug Administration. The Central District of California found that (1) Plaintiff has standing regarding certain unpurchased products, but not others (2) certain statements are unlawful nutrient content claims, (3) a reasonable consumer would not be misled by the statements, (4) plaintiff adequately stated her unjust enrichment claims, and (5) plaintiff can pursue her equitable relief claim. Therefore, the Court denied Defendant’s motion to dismiss as unjust enrichment and equitable relief but granted the motion on all other grounds.

REGULATORY: FNS

FOOD AND NUTRITION SERVICE

Final rule amending the Summer Food Service Program (SFSP) regulations to strengthen program integrity by clarifying, simplifying, and streamlining program administration to facilitate compliance with program requirements. Info here.

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