Trade organizations representing the interests of cattle and pork producers and meat processors in Canada and the United States have filed a lawsuit against the U.S. Department of Agriculture (USDA), challenging country-of-origin (COOL) labeling regulations that took effect May 23, 2013. Am. Meat Inst. v. USDA, No. 13-1033 (D.D.C., filed July 8, 2013). They seek declaratory and injunctive relief, an order vacating the final rule, attorney’s fees, and costs. Explaining that meat producers and processors in the United States, Canada and Mexico have for years freely “commingled” livestock born, raised and processed across their borders, the plaintiffs allege that new requirements forcing them to “list separately, in sequence, the specific country where the animal was ‘born,’ the country where it was ‘raised,’ and the country where it was ‘slaughtered,’” will impose significant costs and entail extensive detail and paperwork for no health or safety reasons. They allege that the COOL regulations…
Category Archives 4th Circuit
A federal court in Maryland has dismissed, under the first-to-file rule, a lawsuit brought by a plaintiff characterized as a “frequent flyer in the United State judicial system,” finding that five similar putative class action lawsuits against the defendants, three of which were filed before the plaintiff filed his complaint, are currently pending in a federal court in California. Hinton v. Naked Juice Co., No. 11-3740 (D. Md., decided April 30, 2012). The plaintiff, who has apparently filed at least 43 other federal civil lawsuits, all dismissed as frivolous, sought $100,000 in damages from the defendants, claiming that they label their beverages as “Non-GMO” and “natural” while using genetically modified and synthetic ingredients. He filed the complaint in state court, and it was removed to federal court. After the defendants sought to dismiss the case or transfer it to California on convenience grounds, the plaintiff filed a motion for remand.…
A federal court in South Carolina has dismissed three of four claims in a lawsuit filed by a family farming operation that claims the Food and Drug Administration’s (FDA’s) 2008 tomato recall, which later proved unnecessary as the agency conceded that tomatoes were not the source of the Salmonella contamination, caused the farm substantial economic harm. Seaside Farm, Inc. v. United States, No. 11-1199 (D.S.C., decided March 6, 2012). Further details about the litigation appear in Issue 395 of this Update. The court dismissed the plaintiff’s Takings Clause claim, the claim that FDA violated the South Carolina Unfair Trade Practices Act and the defamation claim. The plaintiff’s negligence claim will, however, proceed. While the court suggested that this may actually be a claim for defamation and thus may also be subject to dismissal under the Federal Tort Claims Act, because the defendant did not seek to dismiss on this ground, the court declined…
A federal court in South Carolina has reportedly determined that a tomato grower seeking damages from the U.S. Food and Drug Administration (FDA) allegedly caused by a 2008 tomato recall that followed a Salmonella outbreak which was ultimately found not to be linked to contaminated tomatoes, may pursue negligence claims against the agency. Williams Farms Produce Sales, Inc. v. United States, No. 11-01399 (D.S.C., order entered February 23, 2012). Further details about the case appear in Issue 398 of this Update. The court has apparently dismissed claims of defamation, slander of title, product/commercial disparagement, unconstitutional taking, and violation of unfair trade practices law. See Law360, February 23, 2012.
A federal court in Pennsylvania has granted the U.S. government’s motion for summary judgment and permanently enjoined a Pennsylvania dairy farmer from selling raw milk and milk products in interstate commerce. United States v. Allgyer, No. 11-02651 (E.D. Pa., decided February 2, 2012). According to the court, Daniel Allgyer’s interstate sales of raw milk were discovered through an undercover investigation that involved placing online orders for the product through a membership-only group. Members were cautioned by the website to “not share information” about the group with government agencies or doctors. The Food and Drug Administration (FDA) apparently purchased some of the milk for delivery out of state, and independent testing confirmed that it was unpasteurized. FDA warned the farmer to stop violating federal law, but he continued to make deliveries to out-of-state consumers through a different membership organization. The court rejected the defendant’s arguments that summary judgment should not be…
Del Monte Fresh Produce N.A. has filed a notice of dismissal in a Maryland federal court after the Food and Drug Administration (FDA) agreed to lift the import alert it imposed on cantaloupes from Guatemala that had purportedly been linked to a Salmonella outbreak. Del Monte Fresh Produce N.A., Inc. v. United States, No. 11-2338 (D. Md., dismissed September 27, 2011). Additional details about the case appear in Issue 407 of this Update. According to an FDA spokesperson, the agency lifted the restrictions on the basis of a company submission that included an independent audit showing that the Guatemalan farm was following good agricultural practices and tests indicating that none of the farm’s cantaloupes were positive for Salmonella. Public health advocates had reportedly called the lawsuit a bullying tactic, and Center for Science in the Public Interest’s Caroline Smith DeWaal said, “We would certainly hope that FDA has proof that…
Del Monte Fresh Produce N.A., Inc. has filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA) in a federal court in Maryland alleging that the agency lacked an adequate factual basis after a Salmonella outbreak in early 2011 to conclude that the company’s Guatemalan cantaloupe supplier was the source of the contamination. Del Monte Fresh Produce N.A., Inc. v. United States, No. __ (D. Md., filed August 23, 2011). On the basis of that conclusion, FDA allegedly demanded that the company issue a recall or “suffer the consequences of an FDA consumer advisory questioning the wholesomeness of Del Monte cantaloupes.” The agency also imposed an import alert under which Del Monte is prohibited from importing cantaloupes from its Guatemalan source without proving the fruit is “negative” for Salmonella and other pathogens. According to Del Monte, “this prohibition will continue indefinitely into the future unless…
A federal court in Maryland has permitted groups representing environmental and fishing interests to intervene in litigation filed by Dow AgroSciences LLC and two other pesticide manufacturers against the U.S. National Marine Fisheries Service (NMFS), seeking to overturn the agency’s opinion that three insecticides threaten the Pacific salmon. Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., No. 09-00824 (D. Md., order entered August 23, 2011). In March 2011, the Fourth Circuit Court of Appeals determined that NMFS’s biological opinion on the effects of chlorpyrifos, diazinon and malathion was judicially reviewable action under the Administrative Procedure Act, thus allowing the companies, which hold registrations for the insecticides from the Environmental Protection Agency (EPA), to challenge the action before the district court. NMFS apparently provided the biological opinion to EPA in 2008 as part of EPA’s process of reregistering the insecticides for sale and use; they were first registered in the 1950s and…
African-Americans who briefly worked at a North Carolina farm in 2010 allege that they were subjected to a hostile work environment and discriminatory job conditions so the employer could obtain certification under a Department of Labor (DOL) program that allows farmers to hire seasonal foreign workers when U.S. workers are not available and hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Fulford v. Alligator River Farms, LLC, No. 11-00103 (E.D.N.C., filed June 20, 2011). The Equal Employment Opportunity Commission allegedly issued the plaintiffs a letter of determination relating to their claims. According to the complaint, DOL certification requires that employers undertake specified efforts to recruit U.S. workers after the need for the services of foreign workers (referred to as H-2A workers) arises. Among other matters, the employer must submit a job, or clearance, order to the local state employment agency. The…
The Fourth Circuit Court of Appeals has determined that the time poultry workers spend donning and doffing protective gear at the beginning and end of their shifts must be compensated as an “integral and indispensable” part of the principal activity of employment. Perez v. Mountaire Farms, Inc., No. 09-1917 (4th Cir., decided June 7, 2011). Because the time the employees spent doffing and donning some of their gear during an uncompensated meal break was related to their meal break and took a minimal amount of time, the court ruled that time noncompensable. The court found that the employer did not willfully violate the law, thus a two-year statute of limitations was applied to the litigation. And the lack of willfulness was found to be evidence of its good faith, so the court denied the employees’ request for liquidated damages under the Fair Labor Standards Act.
