The National Agricultural Law Center (NALC)

The Ag & Food Law Update: September 12, 2016

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

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.

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