Category Archives: ag law harvest

The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural and Resource Law Program

August turned out to be a very busy month for food law.  We’re again reading headlines about the definition of meat and debates over cage-free egg laws.  We’ve also come across some interesting criminal actions involving organic labeling fraud and undocumented workers at poultry processing plants.  And yet again we have a Roundup update, but fortunately for Bayer, the target of the latest lawsuits are Home Depot and Lowe’s.  So without further ado, here’s our latest gathering of agricultural law news you may want to know:

Tofurkey cries foul against state definitions of meat.  The maker of edible vegetarian products designed to replicate the taste and texture of meats is fighting back against state labeling and advertising laws that require products labeled as “meat” to be made of meat.  Tofurky filed a lawsuit in federal court in Arkansas to stop the state from enforcing such laws, which is similar to a lawsuit it filed in Missouri and yet another company filed in Mississippi.  Livestock advocacy groups succeeded in having 12 states pass laws restricting the ability of food producers to refer to their products as meats if those products contain no meat.  Livestock advocacy groups argue that the labeling practices are confusing and misleading to consumers, while companies like Tofurky argue that they have a constitutional right to describe their products with meat terminology.  On its website, Tofurky lists beer brats, jumbo hot dogs, “slow roasted chick’n,” “ham style roast,” and more.  None of the products contain meat.

Organic food fraud puts farmers in jail.  A federal judge sentenced a 60-year-old Missouri farmer to serve 10 years and 2 months in prison after being convicted of wire fraud, which is the federal crime of committing financial fraud through the use of a telecommunications wire across state lines.  This includes placing a phone call, sending an email, or advertising online in the furtherance of the fraudulent scheme.  Another three farmers were also sentenced to prison for terms ranging from 3 months to 2 years for their participation.  The fraud involved a decade-long scheme to mix traditional corn and soybeans with a small amount of organic grains and then label everything as certified organic.  The grains were mostly sold as animal feed to producers and companies selling organic meat.  Organic products generally are sold at a high premium, and the volume of goods in this scheme resulted in the farmers receiving millions of dollars from consumers that was fraudulently obtained.  The lengthy prison sentences reflect the farmers’ intentional misrepresentation and mislabeling.  In other words, it was not an accident.

Oregon joins California and Washington to make the west coast cage-free.  States continue to battle over whether eggs should come from cage-free hens or caged hens.  When we last discussed the topic HERE in May, the governor of the state of Washington had just signed his state’s cage-free requirement into law.  Iowa, the nation’s leading egg producing state, has gone the other way in trying to limit cage-free egg production.  Now, Oregon is set to ban the purchase or sale of eggs and egg products from caged hens starting in 2024.  However, Oregon’s law exempts eggs and egg products from caged hens if the sale occurs at a federally inspected plant under the Egg Products Inspection Act or if the caged hens were at a commercial farm with a flock of fewer than 3,000 hens.  You can read the text of the bill HERE.

Immigration and Customs Enforcement raids poultry processing plants.  Federal immigration officials have alleged that managers at five Mississippi poultry processing plants knowingly hired undocumented aliens who are not authorized to work in the United States.  Fines for individuals or companies proven to have actual knowledge that they hired undocumented workers can reach up to $3,000 per undocumented worker.  Individuals may also face prison time.  According to news reports, ICE arrested 680 possibly undocumented workers during its August 7th raids in Mississippi.  In their applications for the search warrants, the investigators alleged that the companies hired undocumented workers who were wearing GPS ankle monitors as they await deportation hearings, reported Social Security numbers of deceased persons, and used different names at different times.

Latest Roundup lawsuit targets retailers Home Depot and Lowe’s.  You’ve heard us talk before about the thousands of lawsuits against Monsanto (now owned by Bayer) based on the allegation that the glyphosate in products like Roundup has caused cancer.  If you’d like a refresher, you can review our last post HERE.  Now, instead of going after the manufacturer, a new plaintiff is going after retailers.  Plaintiff James Weeks filed two class action complaints in federal court in California against Home Depot and Lowe’s, alleging that the home improvement giants failed to adequately warn customers about the safety risks posed by using the popular weed killer.  Mr. Weeks argues that the labeling leaves the average consumer with the impression that the greatest risk of harm is eye irritation, when in fact the retailers know of the product’s potential carcinogenic properties.  As these complaints are class action complaints, Mr. Weeks seeks to claim representative status over all consumers who purchased Roundup products from these retailers, and thereby lead the case against the retailers.  It will be interesting to see whether the court certifies these cases as class actions, or if this strategy falls short for the plaintiff.  You can read the complaint against Home Depot HERE.

Food giants seek silence from U.S. Commodity Futures Trading Commission.  In 2015, the U.S. Commodity Futures Tradition Commission initiated a lawsuit against Mondelez International Inc. and Kraft Heinz Co. for allegedly manipulating the wheat futures market.  All parties recently agreed to an undisclosed settlement, and entered into a consent order with the court to close the matter.  The agreement apparently included a provision that all parties would refrain from publically commenting about the settlement.  However, the federal agency ended up commenting on the settlement by the end of the week in which the agreement was finalized.  Mondelez and Kraft Heinz believe that such statements violated the terms of the consent order, although the federal agency contests the allegation.  Nonetheless, the confidentiality restrictions make it difficult to know the full details of the settlement.  All we know for certain is that there was one.

Federal courts report that Chapter 12 family farm bankruptcies are on the rise.  The federal court system releases data every quarter on the number of bankruptcies filed each month in that quarter.  The latest numbers for April to June 2019 showed a slight increase in the number of Chapter 12 bankruptcies filed when compared to the same time period in 2018.  Nationwide, there were 164 new filings, compared to 135 in the second quarter of 2018.  The numbers show a gradual increase in the use of Chapter 12 bankruptcy since 2013, but the numbers are starting to tick up to levels not seen since the Great Recession.  Chapter 12 bankruptcy is a special form of bankruptcy that can only be used by family farmers and family fishermen whose total debts do not exceed a certain dollar limit.  The current dollar limit is $4.4 million, but there is legislation awaiting President Trump’s signature to increase the limit to $10 million.  In large part because of these restrictions, Chapter 12 is one of the least commonly used forms of bankruptcy.

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The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

It’s been a busy July in the ag law world, to say the least.  The Ohio General Assembly officially passed the hemp bill and a budget, RMA adjusted its prevent plant restrictions, and we have seen more activity on LEBOR.  With everything that is going on, it’s time for another ag law harvest.  Here’s our latest gathering of agricultural law news you may want to know:

Ohio Department of Agriculture announces website for future hemp program.  Just days after S.B. 57 took effect, the Ohio Department Agriculture (ODA) launched a new webpage declaring “Hemp Is Now Legal.”  However, the webpage goes on to explain that hemp cultivation, processing, and research licenses, which are required to legally do those activities, are not yet available as the rules and regulations have not been developed.  ODA says the goal is to have farmers licensed and able to start planting hemp by spring 2020.  As for CBD, the webpage says that it is now legal to sell properly inspected CBD products in Ohio.  Note the “properly inspected” caveat.  ODA wants to test CBD products for safety and accurate labeling before the product is sold to Ohio consumers.  If they have not already done so, those wanting to sell CBD products should contact ODA to have their product tested.  You can view the new webpage HERE.

Judge says $2 billion damages award is too much in Roundup case.  A California state judge recently reduced the punitive damages award granted to Alva and Alberta Pilliod from $2 billion to $69 million, and reduced their compensatory damages from $55 million to $17 million.  All combined, the couple would still receive $86.7 million in damages.  As we previously discussed, the couple successfully convinced a jury that the glyphosate in Roundup significantly contributed to causing their non-Hodgkin’s Lymphoma.  In reducing the awards, the judge explained that the punitive damages were excessive and unconstitutional because they exceeded the U.S. Supreme Court’s restrictions.  However, the judge denied Bayer’s request to strike the punitive damages award outright.

U.S. EPA denies petition to ban use of cholrpyrifos pesticide.  Back in 2007, environmental groups petitioned to have the U.S. EPA revoke tolerances and registrations for the insecticide chlorpyrifos, citing harmful effects to people and nature.  Without getting into the merits of the allegations, the timeline and history of the U.S. EPA’s decision is fairly interesting.  The U.S. EPA had not completed its review of the chemical by 2015, so the groups took the agency to court, where they received a court order compelling the U.S. EPA to make a decision.  The agency issued a proposed rule at the end of 2015 that would have revoked the tolerances; however, the federal court said that the U.S. EPA had not completed a full review nor properly responded to the 2007 petition.  Even though it made a decision, the court wanted to see more evidence of a full administrative review.  By the time the agency had a chance to fully review the chemical’s effects, the Obama EPA had turned into the Trump EPA.  In March 2017, the U.S. EPA issued a denial order regarding the petition, which essentially threw out the petition.  The environmental groups submitted an objection shortly after the denial order.  By July 2019, the U.S. EPA had a chance to think some more and issued a final order denying the objections.  As it stands now, the agency has decided not to revoke tolerances or registrations for chlorpyrifos.  To read the agency’s final order denying the objections, click HERE.

Animal Disease Traceability program to require RFID tagging for cattle and bison by 2023.  The USDA’s Animal and Plant Health Inspection Service is looking to fully bring animal disease traceability into the digital world, at least for beef and dairy cattle and bison.  By requiring radio frequency identification (RFID) tags, the service says that animal health officials would be able to locate specific animals within hours of learning about a disease outbreak, significantly less than with paper records.  Starting at the end of 2019, the USDA will stop providing free metal tags, but would allow vendors to produce official metal tags until the end of 2020.  At that time, only RFID tags may be used as official tags.  Starting on January 1, 2023, RFID tags will be required for beef and dairy cattle and bison moving interstate.  Animals previously tagged with metal ear tags will have to be retagged, but feeder cattle and animals moving directly to slaughter will be exempt.  To learn more, view the USDA’s “Advancing Animal Disease Traceability” factsheet HERE.

Senators want to fund more ag and food inspectors at U.S. ports of entry.  Citing the national interest to protect the nation’s food supply, four U.S. Senators have introduced a bill that would provide the U.S. Customs and Border Protection with additional funding over the next three years.  In each of the three fiscal years, the funds would be used to hire, train, and assign 240 additional agriculture specialists, 200 new agriculture technicians who provide support to the agriculture specialists, and 20 new canine teams.  The personnel would work at U.S. ports of entry, including seaports, land ports, and airports across the country.  If passed, S.2107 would require the Comptroller General of the United States to brief congressional committees one year after the bill’s enactment on how well federal agencies are doing at coordinating their border inspection efforts and how the agriculture specialists are being trained.  The bill comes months after U.S. Customs and Border Protection seized nearly a million pounds of Chinese illegally smuggled pork from China, where African swine fever has ravaged the country’s pork industry.  For more information about the bill, click HERE.

Cannabis decriminalization bill introduced in Congress.  Congressman Jerrold Nadler (D-NY) has introduced H.R. 3884 with the aim to do four things: 1) decriminalize cannabis at the federal level, 2) remove cannabis from the federal controlled substances schedules, 3) provide resources and rehabilitation for certain people impacted by the war on drugs, and 4) expunge certain criminal convictions with a cannabis connection.  The bill currently has 30 co-sponsors, including 29 Democrats and 1 Republican.  None of Ohio’s members of Congress have signed on as a co-sponsor at this time.  The bill follows the recent change in status for hemp, which found favor in the 2014 and 2018 Farm Bills.  However, that change in status was largely predicated on the argument that hemp is not marijuana, so it remains to be seen whether the political climate is ready to loosen restrictions on marijuana as well.  For more information about the bill, click HERE.

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The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The OSU Extension Farm Office team has returned from the National Farm Business Conference in Wisconsin.  We gained some fresh perspective on events beyond Ohio’s borders, but are happy to be back in slightly warmer weather.  Our colleagues from across the nation presented on a variety of farm management topics, and we had a chance to discuss some of our recent projects.  We also toured a number of dairy and agritourism farms, and of course ate lots of cheese curds.  The fresh perspective means that it is time for a fresh Ag Law Harvest.

Here’s our latest gathering of agricultural law news that you may want to know:

OSU Extension Ag Law Team featured on Agronomy and Farm Management Podcast.  Recently we had a chance to talk with OSU Extension Educators Amanda Douridas and Elizabeth Hawkins, who together moderate the bi-weekly Agronomy and Farm Management Podcast for OSU Extension.  We discussed the status of Ohio’s hemp bill and what we expect to happen in the near future with hemp regulation and production.  Then we provided an update on the Drewes Farm Partnership v. City of Toledo lawsuit, which grapples with the legality of the Lake Erie Bill of Rights.  Click HERE to listen to the podcast, and look for episode 28.

Minnesota focuses new commercial nitrogen fertilizer regulations on drinking water quality.  In an effort to protect public drinking water sources, the Minnesota Department of Agriculture has chosen to regulate the commercial application of fertilizer.  The state has long regulated the application of manure, but not commercial nitrogen.  The regulations focus on two types of geographic areas: regions with vulnerable soil (coarse soils, karst geology, or shallow bedrock) and farms located in Drinking Water Supply Management Areas.  These management areas are designated based upon nitrate levels found in the drinking water.  Starting in 2020, the state will ban the application of commercial nitrogen in these areas during the fall months and on frozen ground.  Farms in any of the 30 Drinking Water Supply Management Areas would have to follow best management practices to start, but if nitrate levels continue to exceed state limits, then the state may impose additional restrictions in an area to reduce nitrogen pollution.  For more information on Minnesota’s Groundwater Protection Rule, click HERE.

Federal court puts a hold on Bud Light’s “100 percent less corn syrup” ads.  If they missed seeing it live during the Super Bowl, most people in the agricultural industry have at least seen the recent Bud Light advertising campaign that claims the beer uses no corn syrup while its competitors do.  Shortly after the initial release of the ad, MillerCoors sued Anheuser-Busch, which makes Bud Light.  MillerCoors wants a permanent injunction that would stop Bud Light from continuing its corn syrup advertising campaign, arguing that the advertisements are false and misleading to consumers.  The first step to a permanent injunction is often a preliminary injunction, which makes a party act or not act in a certain way only while the case is pending.  The judge presiding over the lawsuit granted MillerCoors’ motion for a preliminary injunction in part.  The judge ordered Anheuser-Busch to temporarily stop using ads mentioning corn syrup if those ads do not contain language explaining that Bud Light does not use corn syrup in the brewing process.  The judge’s act does not ban the ad that premiered during the Super Bowl.  Rather it only blocks ads released later that claim Bud Light uses 100 percent less corn syrup than competitors like MillerCoors.  Click HERE to view the complaint, and HERE to view the judge’s order.

It’s (mostly) official: USDA’s ERS and NIFA are headed to Kansas City.  U.S. Secretary of Agriculture Sonny Perdue announced the USDA’s selection of the Kansas City, Missouri region as the new headquarters for the Economic Research Service and National Institute of Food and Agriculture.  The location changed caused a great deal of controversy as some viewed it as a political move.  However, the USDA has maintained that relocation will save millions of dollars over the next few years and put the agencies closer to a number of other USDA offices in Kansas City, such as the Farm Service Agency’s Commodity Operations Office.  The Secretary reduced some of the controversy by scrapping plans to place the agencies under the USDA’s Chief Economist, who is a political appointee.  Before we call the move a done deal, we must note that Congress could stop the plans.  The U.S. House of Representatives might block the move via a Department of Agriculture-FDA spending bill currently under consideration.  Click HERE to read Secretary Perdue’s press release.

Bayer announces multi-billion dollar hunt for glyphosate replacement.  Somewhat buried in a press release titled “Bayer raises the bar in transparency, sustainability and engagement,” Bayer recently announced a substantial investment in its weed management research.  Over the next ten years, the company plans to spend 5 billion euros, or roughly 5.6 billion U.S. dollars, to develop weed control products as alternatives to glyphosate.  The announcement comes at a time with thousands of plaintiffs across the United States have claimed that the widely-used glyphosate caused their cancer.  As we have previously discussed in the Ag Law Blog, the first three juries have in total awarded plaintiffs billions of dollars in damages.  Bayer continues to fight the allegations and defend its product, but the press release marks the first time that Bayer has publically announced a search for an alternative to glyphosate.  It remains to be seen whether the press release could have an impact in the lawsuits, but Bayer will likely try to keep the press release out of the trials by using court rules of evidence.

Ohio House passes amusement ride safety bill.  County fair season has officially kicked off in Ohio, and some state lawmakers want to make sure that amusement rides at those fairs are safe.  House Bill 189 seeks to heighten Ohio’s amusement ride safety inspection standards and impose additional duties on amusement ride owners.  The bill would require the Ohio Department of Agriculture to adopt ride classification rules that identify types of rides needing more comprehensive inspection, along with the minimum number of inspectors and number of inspections for each ride.  Further, the bill would require amusement ride owners to keep a manual for each amusement ride, and make it available upon request of an inspector.  Amusement ride owners would also have to keep records, including documents and photographs, of all major repairs along with all locations where the owner stored or operated each ride.  The bill includes an emergency clause, which would allow it to take effect as soon as the Governor signs it.  Lawmakers named the bill “Tyler’s Law” after the young man who died following an equipment breakdown at the Ohio State Fair in 2017.  Click HERE for more information about the bill.

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The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

We might be in the middle of planting season, but it’s time for another harvest!  Here’s our latest gathering of agricultural law news that you may want to know:

Hemp bill completes third hearing in Ohio House committee.  The Agriculture and Rural Development Committee in the Ohio House of Representatives completed its third hearing regarding Senate Bill 57 on Tuesday.  The bill would decriminalize hemp produced under the regulatory system proposed in the bill.  The committee heard testimony from nearly two dozen individuals and organization representatives.  None of the witnesses gave testimony in opposition to the bill.  Nearly all of the testimony, including the testimony given on behalf of the Ohio Farm Bureau Federation and Ohio Chamber of Commerce, was offered in support of the bill.  The Ohio Farmers Union submitted testimony only as an “interested party” rather than as a “proponent,” saying that it supports the principle of hemp decriminalization, but does not believe that the hemp marketing program established in the current version of the bill would be necessary.  Click HERE to view the witness testimony regarding Senate Bill 57 on the Ohio General Assembly’s webpage.

Food and Drug Administration sets public hearing on cannabis in food and drinks.  The U.S. Food and Drug Administration has set May 31, 2019 as the date of its first hearing on whether to legalize the use of cannabis derived compounds like CBD in foods and drinks.  According to the Federal Register, the hearing is open to the public, and intended for the FDA to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling, and sale of products containing cannabis or cannabis-derived compounds.  The hearing will be held in Maryland on May 31st, but those wishing to submit written or electronic comments may do so until July 2nd.  Click HERE for more information from the Federal Register about the hearing.

Cattle ranchers file class action suit against major meatpacking companies. The Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and six other named parties brought suit against major meatpackers, including Tyson Foods, JBS USA, Cargill, and National Beef Packing Company.  Filed in federal court in the Northern District of Illinois, the plaintiffs’ complaint alleges that these meatpackers colluded to suppress the price of fed cattle since at least 2015, and that as a result, the plaintiffs suffered significant economic harm from the deflated prices.  When companies agree to set prices for an industry, they engage in collusion, which could violate U.S. antitrust laws.  The 121 page complaint includes a number of charts, graphs, and visuals that explain the alleged economic manipulation, along with a thorough history of an alleged pattern of collusion.  If the federal judge certifies the class as requested, other cattle ranchers will have the choice of whether to be included in the class or not.  This is important in determining whether the unnamed members of the class are bound by a final decision or able to participate in any settlement or final award.  Click HERE to view the complaint and learn more about this lawsuit.

Indiana Right-to-Farm law upheld by Court of Appeals of Indiana.  When a federal court in North Carolina decided that that state’s right-to-farm law did not protect hog barns operated by Smithfield Foods in lawsuits alleging agricultural nuisance, there was concern that right-to-farm laws in the United States may be in trouble.  However, those fears have begun to subside in other states.  As we explained in a previous blog post, Ohio’s right-to-farm law provides greater protections from a nuisance lawsuit than North Carolina’s law.  Further, the Court of Appeals of Indiana recently upheld the use of Indiana’s Right to Farm Act.  In doing so, it upheld a lower court decision that granted summary judgment in favor of the defendant livestock operators.  At the start of the case, the plaintiffs alleged that the defendants created a nuisance, acted negligently, and caused a trespass when the defendants constructed and began to operate a new concentrated animal feeding operation in 2013.  However, the defendants cited Indiana’s Right to Farm Act as a defense and won.  The plaintiffs sought to challenge the constitutionality of the Indiana’s Right to Farm Act, but the appellate court found that the law was within the legislature’s proper authority, did not constitute a taking, and did not improperly set farmers apart for preferential treatment.  The original plaintiffs have a few more days to file an appeal with the Indiana Supreme Court.  Click HERE to read the appellate court’s opinion.

State of Washington passes cage-free egg production law.  Washington is set to join states like Massachusetts and California in requiring egg-laying hens to live free of cages.  Once signed into law by the governor, Substitute House Bill 2049 would require poultry operators to use a cage-free housing system that would allow hens to roam within the confined area by 2023.  Further, hens must be “provided enrichments that allow them to exhibit natural behaviors including, at minimum, scratch areas, perches, nest boxes, and dust bathing areas.”  Farm employees must be able to provide care while standing in the hens’ usable floor space.  The bill would also make it illegal to buy, sell, or transport eggs and egg products that were not produced in compliance with the state’s cage free egg production law.  The Humane Society of the United States spearheaded the legislative effort on this bill, which initially passed the Washington House of Representatives 90-6 and the Senate 40-6.  Click HERE for more information about the bill’s status, and HERE to read the final text of the bill.

Missouri legislature considers ending local regulation of CAFOs.  The Missouri General Assembly is considering a pair of bills that would 1) limit the ability of county commissions and health boards from imposing restrictions on confined animal feeding operations that are more stringent than state law, and 2) eliminate the authority of county commissions and health boards from inspecting livestock operations.  So far, each bill has passed one chamber of the Missouri General Assembly, and is being considered in the other chamber.  Supporters argue that the bills would provide for regulatory consistency across the state in light of varying local regulations.  Opponents argue that the bills would harm local jurisdictions from enacting restrictions that better protect the environment than current state law.  This debate is similar to recent and ongoing debates in states like Tennessee and Wisconsin over which entities can regulate confined animal feeding operations, and how much.  Click HERE for more information about Missouri’s Senate Bill 391, and HERE for more information about Missouri’s House Bill 951.

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Ohio Legislation on the Move

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Since our last legislative update in March, Ohio’s legislators and staffers have been busy introducing more legislation.  As of this morning, there are 332 bills that have been introduced by members of the Ohio General Assembly since January.  Some have already passed both the Ohio House and Senate, but most are still pending.  While we cannot write about every pending bill, the following bills relate to agricultural, local government, or natural resource law.  In addition to these bills that we have not yet covered, see the end of this post for an update about bills we mentioned in our last blog post.

Tax

  • Senate Bill 183, titled “Allow tax credits to assist beginning farmers.”  Many agricultural news outlets quickly picked up on this bill.  The bill would authorize two nonrefundable tax credits.  One is for beginning farmers who attend a financial management program, while the other is for individuals or businesses that sell or rent farmland, livestock, buildings, or equipment to beginning farmers.  The Ohio Department of Agriculture would be responsible for certifying individuals as beginning farmers and for approving eligible financial management programs.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • House Bill 109, titled “Grant tax exemption for land used for commercial maple syruping.”  The bill would exempt “maple forest land” from having to pay property taxes.  The landowner would have to apply for the designation with the Ohio Department of Taxation.  Eligible lands are those lands bearing a stand of maple trees where 1) an average of at least thirty taps are drilled each year into at least fifteen different maple trees per acre of land, 2) the harvested sap is incorporated into a maple product for commercial sale, 3) the land is managed under a forest land maintenance plan, and 4) the property has ten or more acres or the sap harvest produces an average yearly gross income of more than $2,500.  Note that all four requirements must be met in order to qualify as an exempt maple forest land.  Click HERE for more information about the bill.

Real property

  • House Bill 103, titled “Change law relating to land installment contracts.”  Ohio’s Land Installment Contract Law, which applies to contracts involving properties with a residence but not contracts involving only open farmland, would see some significant changes under this proposed legislation.  The bill would shift the burden of paying property taxes and homeowner’s insurance from the buyer to the seller.  The seller would also be prohibited from holding a mortgage on the property.  The contract would have to include provisions stating that the seller is responsible for all repairs and maintenance on the property.  Interest rates would also be capped so that the rate cannot exceed the Treasury bill rate for loans of the same length of time by 2%.  For example, if a 5-year land installment contract is entered into on September 7th and the 5-year Treasury bill rate on that day is 2.64%, the interest rate for the land installment contract would not be able to exceed 4.64% under this bill.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

Estate planning

  • House Bill 209, titled “Abolish estate by dower.”  Dower provides a surviving spouse with rights in any real property owned by a decedent spouse.  This bill would end dower estates moving forward, but any interests that vest before the change would take effect would still be valid.  Click HERE for more information about the bill.

Local government

  • Senate Bill 114, titled “Expand township authority-regulate noise in unincorporated area.”  The bill analysis explains that a board of township trustees is currently limited to regulate noise coming from either areas zoned as residential or premises where a D liquor permit has been issued.  The bill would expand the township’s authority to regulate noise anywhere within the unincorporated territory of the township; however, the agricultural zoning exemption would still apply and townships would not be able to enact zoning ordinances that restrict agricultural activities.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • Senate Bill 12, titled “Change laws governing traffic law enforcement.”  Notably for townships, this bill would prohibit township law enforcement officers or representatives from using a traffic camera on an interstate highway.  Click HEREfor more information about the bill, and HERE for the current official bill analysis.

Regulation of Alcohol

  • House Bill 181, titled “Promote use of Ohio agricultural goods in alcoholic beverages.”  The bill would authorize the Ohio Department of Agriculture to create promotional logos that producers of Ohio craft beer and spirits may display on their products.  Specifically, the bill would authorize an “Ohio Proud Craft Beer” and an “Ohio Proud Craft Spirits promotion.  Click HERE for more information about the bill.
  • House Bill 160, titled “Revised alcoholic ice cream law.”  Under current Ohio law, those wishing to sell ice cream containing alcohol must obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol.  This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers that are authorized to sell alcohol.  Click HERE for more information about the bill.
  • House Bill 179, titled “Exempt small wineries from retail food establishment licensing.”  The bill would exempt small wineries that produce less than 10,000 gallons of wine annually from having to obtain a retail food establishment license in order to sell commercially prepackaged foods.  The sales of the prepackaged foods cannot exceed more than 5% of the winery’s gross annual receipts.  The winery would have to notify the permitting authority that it is exempt, and also notify its customers about its exemption.  Click HERE for more information about the bill.

Energy

  • House Bill 20, titled “Prohibit homeowner associations placing limits on solar panels.”  The bill would prohibit homeowners and neighborhood associations, along with civic and other associations, from imposing unreasonable restrictions on the installation of solar collector systems on roofs or exterior walls under the ownership or exclusive use of a property owner.  Condominium properties would similar be prohibited from imposing unreasonable restrictions where there are no competing uses for the roof or wall space where a solar collector system would be located.  According to the bill analysis, an unreasonable limitation is one that significantly increases the cost or significantly decreases the efficiency of a solar collector system.  Individual unit owners would also have the right to negotiate a solar access easement.  Click HERE or more information about the bill, and HEREfor the current official bill analysis.
  • Senate Bill 119, titled “Exempt Ohio from daylight savings time.”  The bill would require Ohio to observe Daylight Savings Time on a permanent basis effective March 8, 2020.  The state’s clocks would spring forward in March, but there would be no falling back in the fall.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

As for the bills that we previously covered in our March legislative update, the following chart explains where those bills stand.  Those that have passed at least one chamber have their passage status underlined in the column on the right.  Those that have had at least one committee hearing list the number of hearings, while those that have not had any activity in committee state only the committee that the bill has been referred to from the floor.

Category Bill No. Bill Title Status
Hemp SB 57 Decriminalize hemp and license hemp cultivation – Passed Senate

– Completed first committee hearing in House

Watershed Planning SB 2 Create state watershed planning structure – Referred to Senate Agriculture and Natural Resources Committee
Animals HB 24 Revise humane society law – Completed third committee hearing in House
Animals HB 124 Allow small livestock on residential property – Referred to House Agriculture and Rural Development Committee
Oil and Gas HB 55 Require oil and gas royalty statements – Completed first committee hearing in House
Oil and Gas HB 94 Ban taking oil or natural gas from bed of Lake Erie – Referred to House Energy and Natural Resources Committee
Oil and Gas HB 95 Revise oil and gas law about brine and well conversions – Referred to House Energy and Natural Resources Committee
Mineral Rights HB 100 Revise requirements governing abandoned mineral rights – Referred to House Energy and Natural Resources Committee
Regulations SB 1 Reduce number of regulatory restrictions – Completed three committee hearings in Senate
Business Law SB 21 Allow corporation to become benefit corporation – Passed Senate

– Completed first hearings in two separate House committees

Animals SB 33 Establish animal abuse reporting requirements – Completed fifth committee hearing in Senate
Local Gov’t HB 48 Create local government road improvement fund – Referred to House Finance Committee
Local Gov’t HB 54 Increase tax revenue allocated to the local government fund – Referred to House Ways and Means Committee
Property HB 74 Prohibit leaving junk watercraft or motor uncovered on property – Completed first committee hearing in House

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Ohio Agricultural Law Blog–The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Now that farmers are preparing to get back in the fields, our presentation season is winding down.  We wanted to take a moment and thank everyone who came to hear us speak at an event this year.  While it does make us a little sad that we don’t have as many presentations coming up, that just means we have more time to keep up with agricultural law news and to do some writing.  With that said, here’s our latest gathering of agricultural law news that you may want to know:

Hemp bill passes Ohio Senate, moves to the Ohio House.  A bill to decriminalize hemp and create a regulatory system for hemp cultivation continues to move through the Ohio General Assembly.  Last week, after the Ohio Senate Agriculture and Natural Resources Committee voted in favor of Senate Bill 57, the bill passed in the Senate by a vote of 30-0.  Now the bill moves on to the Ohio House of Representatives for further consideration.  We have talked about the bill in a previous blog post, but the version that passed the Senate did make some changes.  In addition to the Hemp Program Fund included in the original bill, the new version would also create a Hemp Marketing Program that would impose a .5% levy on hemp producers in order to promote the sale and use of hemp products.  The bill analysis explains that this would be similar to the existing marketing programs for grain and soybeans.  For more information on the bill as passed by the Senate, click HERE to visit the Ohio General Assembly’s website.

Ohio Attorney General Yost asks to join in the Lake Erie Bill of Rights lawsuit.  Last Friday, the Ohio Attorney General filed a motion in the Drewes Farm Partnership v. City of Toledo case seeking to intervene as a plaintiff alongside the Drewes Farm Partnership.  The motion, available HERE, argues that the state of Ohio has a significant interest in the protection of Lake Erie, along with a significant interest in supporting Ohio’s agricultural, environmental, and natural resources laws.  The motion further argues that Toledo’s LEBOR charter amendment contradicts Ohio’s “multi-faceted statutory, regulatory, and civil and criminal enforcement programs that control water pollution,” along with the Ohio Constitution’s limitations on municipal authority.  Prior to this motion to intervene, we had not seen an official statement or action by the State of Ohio regarding LEBOR, and this motion demonstrates that the state believes that LEBOR infringes on its rights.

Attorney Denise Martin assumes role of Chief Legal Counsel at the Ohio Department of Agriculture.  As Chief Legal Counsel, Ms. Martin will oversee the finalization and enforcement of rules created by the Ohio Department of Agriculture.  Her office is staffed by a number of in-house attorneys who work closely with the agency’s various divisions in the rulemaking process.  Additionally, Ms. Martin will be responsible for advising Director Pelanda and other agency officials on legal matters.  Prior to assuming this role, Ms. Martin served as the Court Administrator for the Delaware County Domestic Relations Court.  She also served as an Assistant Prosecutor in Marion County where she prosecuted a variety of felony crimes.  She obtained her law degree from Capital University Law School, went to the Ohio State University for undergrad, and graduated from Mt. Gilead High School.  Her official biography is available on the Ohio Department of Agriculture’s website HERE.

USDA and FDA meet in the middle on regulating cell cultured meat.  Whenever a new technology arrives in a regulated industry, the legal rules often take some time to catch up.  That is certainly true for the cell cultured meat industry, or whatever name you prefer for the new lab grown proteins.  Given the unique nature of the industry, there were questions about which agency should lead the federal regulatory effort, namely the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) or the U.S. Department of Health and Human Service’s Food and Drug Administration (FDA).  In March, the two agencies released a formal agreement that outlines a division of labor between the two.  The agreement lists a number of regulations that each agency will oversee, with the FDA largely overseeing the pre-“harvest” stages and FSIS taking over post-“harvest” when the cell-cultured meat is essentially ready to process.  Both agencies will be responsible for developing joint labeling standards, and both will have inspection authority.  The agencies expect to develop a more thorough joint framework or standard operating procedure in the future.  To view the formal agreement, click HERE.

USDA’s NRCS seeks public input on conservation programming.  As a result of the 2018 Farm Bill, the USDA’s Natural Resources Conservation Service (NRCS) is seeking comment about its existing national conservation practice standards in order to refine and enhance its programming.  According to a news release, NRCS offers over 150 conservation practices to farmers, ranchers, and forest landowners.  Many NRCS support programs offer cost sharing incentives, such as the Environmental Quality Incentives Program and Conservation Stewardship Program.  The public has until April 25, 2019 to submit comments, which can be submitted online in the Federal Register.

ODNR seeks public input on proposed rules regarding brine disposal fees.  The Ohio Department of Natural Resources Division of Oil and Gas Resources Management (DOGRM) is seeking comment regarding draft rules that would establish requirements and procedures for annual brine disposal fees.  The rules would require each owner of a Class II disposal well to submit an annual fee by a set date and using a standard form created by DOGRM.  As part of the rulemaking process, DOGRM will accept public comments about the draft rules until close of business on Friday, April 12, 2019.  For more information about the draft rule, or to submit a comment, visit DOGRM’s website HERE.

 

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The Ag Law Harvest

Written by: Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

As our readers can probably tell by now, there has been a lot happening in the agricultural law world over the past couple of weeks.  From the Lake Erie Bill of Rights going on the ballot in Toledo to a new court decision on wedding barns, we’ve done our best to keep you in the know.  While the legislative sessions in Congress and the Ohio General Assembly have started to shift into a higher gear, covering those bills will take up a lot of space, so be on the lookout for a legislative update soon.

For now, here’s our latest gathering of agricultural law news that you may want to know:

Yep, more WOTUS.  The U.S. EPA has announced new public hearings regarding its proposed revised definition of Waters of the United States.  The hearing will be held on Wednesday, February 27th and Thursday, February 28th at the Reardon Convention Center in Kansas City, Kansas.  For those who wish to provide input, but are unable to make the trip, the U.S. EPA will accept written comments from the public online at http://www.regulations.gov with the docket ID number: EPA-HQ-OW-2018-0149.  The online comment portal will accept new submissions until April 14th.  The text of the proposed rule, which the U.S. EPA released just in time for Valentine’s Day, is available on the online comment portal page as well as in the Federal Register.  For more information about either attending the meeting or submitting a comment to the U.S. EPA, visit the Federal Register’s webpage here.  For more information about WOTUS rulemaking, see our most recent WOTUS blog post, or visit the U.S. EPA’s webpage here.

Conservation funding for federal lands could be restored under U.S. Senate bill.  In a sign of bipartisanship, the U.S. Senate passed the National Resources Management Act by a vote of 92-8.  If the House approves and it receives the President’s signature, the bill would modify a number laws addressing the management and conservation of federal lands, and would also restore funding to the Land and Water Conservation Fund, which had expired last fall.  This fund primarily supports the protection of federal public lands and waters, but it also promotes voluntary conservation on private lands and awards grants to states for the acquisition and development of parks and outdoor recreation sites.  Also in the bill are two specific changes of note for Ohio.  First, section 6004(c) of the bill would increase the cap on total spending for the Ohio & Erie National Heritage Canalway from $10 million to $20 million.  Second, section 2502 of the bill would extend the Lewis and Clark National Historic Trail from Illinois to Pennsylvania, which will include portions in Ohio.  You can read the full text of the bill and see the official analyses on Congress’s website here.

FFA charter amendments approved by Congress and the President.  Citing issues arising from the U.S. Department of Education’s not filling seats on the National FFA Board of Directors, the National FFA sought an amendment to its charter.  Congress originally granted the charter in 1950, and any changes to the charter must be done so by an act of Congress.  One of the major changes sought by National FFA was a reduction in the number of seats on the board of directors that must be appointed by the Department of Education.  By not filling all of the seats on the Board of Directors, the National FFA faced difficulty making decisions because it often could not meet its quorum for meetings.  The new amendments reduce the organization’s reliance on an appointment to its board of directors by the U.S. Department of Education, which increases the organization’s ability to self-govern.  You can read the text of the bill on Congress’s website here, or visit the National FFA’s webpage on frequently asked questions about the charter revision here.

The PACT Act is back.  The Prevention of Animal Cruelty and Torture Act has been reintroduced into the U.S. House of Representatives.  The act would allow for significant fines and up to seven years in prison for those convicted of animal crushing, creating animal crushing videos, or distributing animal crushing videos.  The bill defines crushing as “actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.”  However, the bill does contain exceptions for conduct that is related to “customary and normal veterinary, agricultural husbandry, or other animal management practice[s];” “the slaughter of animals for food;” legal hunting, trapping, and fishing activities; research; defense of a human; and euthanizing an animal.  Many in the agriculture community have opposed the bill, arguing that it is duplicative in light of animal protections created by the states and that it risks courts and juries interpreting the language too broadly.  At this time, the bill has only been introduced in the U.S. House and referred to the Judiciary Committee.

Nebraska wind farms sue to enforce contract and keep utility from flying off into the sunset.  Three Nebraska windfarms in a power supply contract with the Nebraska Public Power District (NPPD) have filed suit to prevent the utility from backing out of the contract.  The wind farms filed a complaint in federal court in Nebraska on January 30th, alleging that NPPD expressed its intention to terminate a power purchase agreement, and that doing so would be wrongful.  The complaint explains NPPD’s position that the wind farms materially violated the contract by investing in other businesses and operations.  The plaintiffs disagree that there was a breach, but say that even if there was, NPPD cannot terminate the contract because it knew of the transactions.  The plaintiffs also note that NPPD has eminent domain power.  They argue that by terminating the contract, NPPD knows that the wind farms will likely enter default with creditors.  This could allow NPPD to acquire the rights of the wind farms through a foreclosure sale or eminent domain.  To prevent NPPD from terminating the contract, the parties requested, and were granted, a temporary restraining order until March 1st that requires NPPD to honor the contract.  The case is cited as Laredo Ridge Wind, LLC v. Nebraska Pub. Power Dist., No. 8:19-cv-45 (D. Neb.).

Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture.  A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater.  A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks.  These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature.  Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute.  The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities.  Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications.  The two certification orders are available here and here.

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