Category Archives: Food

Do I need a license for that? Vendor’s License and Sales Tax Requirements for Ohio Farmers Market Vendors

Farmers markets in Ohio continue to grow in number, and the types of vendors and products offered by those vendors have greatly diversified over the years.  Along with this growth come new questions about vendor’s licenses and the collection of sales taxes.

Many market vendors may know that traditional market items like fresh fruits and vegetables do not require a vendor’s license or the collection of sales tax.  But what about beverages, cottage foods, plants and flowers, ready to eat foods, soaps, crafts, and similar items that contribute to the success of today’s farmers markets?  Fortunately, learning about Ohio’s vendor’s license and sales tax requirements doesn’t have to be a taxing experience.

In our fresh off the press law bulletin, titled “Vendor’s Licenses and Sales Taxes at Ohio Farmers Markets,” we dive into a number of questions that farmers market vendors frequently ask us.  Specifically, we address questions such as:

  • Do vendors at a farmers market need a vendor’s license?
  • What items do not require the collection of sales tax?
  • What items do require the collection of sales tax?
  • How do I obtain a vendor’s license in Ohio?
  • Is a vendor’s license the same as a retail food establishment license?
  • What if I want to sell products in other states?
  • Can vendors include sales tax in the price of the product?

While this law bulletin covers vendor’s licenses and sales taxes fairly in depth, there is always more to learn.  The law bulletin also provides a number of links to helpful resources from the Ohio Department of Taxation and neighboring states, along with a number of references to Ohio law.

Click HERE to view our latest law bulletin.

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What We’ve Been Up To: Factsheets on Reducing Risk in Agritourism

Agritourism continues to boom across the United States, with agritourism farms offering activities from apple picking to zip lining.  Literally A to Z.  Consumer interest in food and farming, along with an economic need to augment farm income through diversification, have combined to drive this boom.  As more farms delve into agritourism, their liability risks change.  Risk and liability are hard, if not impossible, to totally eliminate, but there are a number of steps that agritourism farms can take to reduce the chances of something bad happening.

Based upon the questions generated from our law bulletin on Ohio’s agritourism law, we wanted to take an in depth look at common legal issues and risks facing agritourism.  Created as part of a project for the Agricultural & Food Law Consortium, our new factsheet series does just that.  Specifically, these factsheets examine:

  • Legal risks of animal and human interactions
  • Selling food on the farm
  • Agritourism immunity laws across the country
  • Zoning laws across the country
  • Insurance coverage for agritourism

Each factsheet addresses common considerations and questions about starting and operating an agritourism farm, and provides links to helpful resources.  The factsheets are designed to have something for everyone in the industry.  From those just thinking about implementing agritourism who need to think about the basic risks, to those agritourism farms that are already well established and want a risk refresher.  Beyond the industry, those professionals who advise agritourism farms may find the considerations helpful.

Most of the new factsheets include a checklist.  The checklists include questions that an agritourism farmer should ask their attorney, zoning inspector, insurance provider, local health department, and more.  The checklists do not represent the only legal concerns that an agritourism farm must think about, but rather a starting point.  Every agritourism farm is unique, and must be treated as such when examining liability and risk.

The reducing legal risk in agritourism project is available on our website HERE, as well as the National Agricultural Law Center’s website HERE.  This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

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Changes proposed for the Ohio Uniform Food Safety Code

Written by Ellen Essman, Senior Research Fellow 

Throughout the month of November, the Ohio Department of Health (ODH) announced proposed amendments to rules, as well as the rescission and replacement of one rule, in the Ohio Administrative Code (OAC) Chapter 3717-1, the Ohio Uniform Food Safety Code.  The changes are being recommended due to the required five year review of rules by ODH, as well as to “update the rules to be consistent to the current version of the Food and Drug Administration’s (FDA) Model Food Code,” which is required under Ohio law.

While most of the amendments to the rules are grammatical, or have to do with formatting or updating language, small, substantive changes are made in several rules.  For instance, the proposed changes in OAC 3717-1-01 would change several definitions to be “consistent with FDA’s Model Food Code.”  It would further “correct the definition of general use pesticide and restricted use pesticide to be consistent with the Ohio Department of Agriculture’s law,” among other changes.  Proposed changes to OAC 3717-1-02.3 to make it mandatory for all food employees to cover or “restrain” their hair in some way.  The changes recommended for 3717-1-03.2 would add requirements for the storage of utensils being used during cooking, prohibit the use of latex gloves in food service operations and retail food establishments, and add “nail brushes” to the list of control measures used by “food employees contacting ready-to-eat food with bare hands.”  Changes proposed for OAC 3717-1-03.4 would add new requirements for the contents of a HACCP plan.  Suggested modifications to 3727-1-08.2 would make it mandatory for the “[c]ustom processing of game animals, migratory waterfowl or game birds in a food service operation or retail food establishment…[to] be done only at the end of the work shift or day to prevent any cross contamination of product for sale or service.”

Finally, ODH proposes that 3717-1-20, which concerns existing facilities and equipment in a food service operation or food service operation, be rescinded and replaced.  Although this seems like a major change, there are no real substantive changes between the current rule and the proposed replacement; ODH is simply suggesting a considerable reorganization of the rule’s wording and formatting. The entire rules package is available here.

A hearing on the changes will be held on Thursday, December 20, 2018 at 11:00 a.m. at ODH.  The address is: 35 East Chestnut Street Columbus, Ohio 43215.  The hearing will take place in ODH Basement Training Room A.  Those who may be affected by the rules are invited to attend and participate. Any written comments must be submitted by 5:00 p.m. on December 18, 2018 to ODHrules@odh.ohio.gov.  More information about the hearing, as well as a brief description of the changes being made to each rule, can be found in this document.

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Meat Law Continues to Sizzle in the News

Written by: Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

Every year, we hear fascinating legal updates at the American Agricultural Law Association’s annual conference.  Thanks to presentations by Todd Janzen and Brianna Schroeder of Janzen Ag Law in Indianapolis, we were inspired to learn a little more about trends in meat law.  For readers with a livestock operation, these legal issues can present great challenges, and keeping up to date on legal trends helps farmers stay prepared.

Veal, pork, and eggs: states battle each other on minimum confinement space regulations.

California voters passed Proposition 12 in the November 2018 election, which will require producers to comply with minimum confinement space regulations in order to sell certain products in California.  The Prevent Cruelty California Coalition placed the proposition on the ballot, expanding a previous regulation on in-state suppliers, but the new law would apply to any producer trying to sell veal, pork, or eggs in California.  By 2020, veal calves must be housed with at least 43 square feet of usable floor space, breeding pigs must be housed with at least 24 square feet of usable floor space, and egg-laying hens must have at least 1 square foot of floor space.  However, by 2022, egg-laying hens must be cage free.  Proposition 12 strengthens requirements approved by California voters in 2008’s Proposition 2 by imposing the requirements on out-of-state producers who want to sell their products in California.

In 2016, Massachusetts voters approved a ballot measure that would require eggs sold within the state to be cage free by 2022.  Thirteen states, led by Indiana, have sued Massachusetts in the United States Supreme Court in an attempt to stop Massachusetts from enforcing the requirement.  These states allege that the restriction is an attempt to regulate how farmers in other states operate, which violates the rights of other states to create their own regulations.  This would be a constitutional question under what is known as the Dormant Commerce Clause, which prohibits states from unfairly regulating business activities that have impacts beyond a state’s border.  Status updates on the lawsuit are available here.

Trying a legislative solution to slow the trend of cage-free restrictions, Iowa passed a law earlier this year that requires grocers that sell cage-free eggs to also sell conventional eggs if they want to receive benefits from the USDA WIC program.  Supporters of the law argued that cage-free eggs are often more expensive and excluded from the WIC program.  They argue that as a result, when grocers make commitments to sell only cage-free eggs, they make it more difficult for low-income families to purchase eggs.

Beef: non-meat proteins continue to target beef.

The “Impossible Burger” wants to convince consumers that a non-meat burger patty that tastes just like meat is just around the corner.  Veggie burgers are not new to the grocery store shelves, but recent innovations that have allowed non-meat proteins to improve in taste and texture have raised concerns among meat producers that these products are becoming a serious threat.  Given that many of these innovations have taken aim at the burger market, beef producers in particular have felt a target on their backs.  As we reported in a previous edition of The Harvest, Missouri became the first state this year to regulate labeling of non-animal products as being derived from an animal, and the U.S. Cattlemen’s Association has petitioned the USDA to consider regulating labels involving animal terms like “meat.”  Other speakers at the AALA conference indicated that the USDA is currently debating how to regulate labels, but has yet to develop a comprehensive rule package.

Dairy contracts: always know what you are signing.

The market has been very tough for dairy producers.  Having a long term supply contract in place is certainly preferable to no contract, but depending upon the terms of the contract, unfortunate surprises may be in store.

Purchasers often write the contracts, and include terms that favor them.  For example, many contracts contain termination provisions that allow either party to end the agreement for essentially any reason with prior notice, often 30 days.  When producers invest in their operations under the expectation that the contract will stand throughout the term specified, these termination provisions can result in devastating surprises.  As another example, many contracts contain confidentiality agreements that make it difficult for a producer to determine whether the deal they are offered is great, average, or actually bad.  Equally concerning for producers are provisions that shift liability for problems with the milk to the producer, and away from the purchaser who sells the milk on the market.  With modern technology, tracking where milk originated makes this possible.  Courts are likely to enforce these agreements because the law of contracts favors enforcement of private agreements.

Given the current market, many dairy producers felt that they are not in a position to negotiate better terms, for fear that another dairy close by will accept the terms as-is.  This position is made worse by the inability of producers to talk about their contracts with one another because of confidentiality provisions.

What a producer can do is to read the contract carefully and make sure that he or she understands the terms of the contract.  It may be wise to speak with an attorney to verify that the producer’s understanding of the contract matches how the contract is likely to be read by a court.

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Ohio Produce Company Found to Violate the Perishable Agricultural Commodities Act

By Ellen Essman, Sr. Research Associate

On September 25, 2018, USDA found a Cleveland, Ohio company to be in violation of the Perishable Agricultural Commodities Act, or PACA.  USDA initiated the complaint against Forest City Weingart Produce (Forest City) in November 2017.  Forest City’s failure to pay $716,689, collectively, to numerous produce sellers is considered “unfair conduct” under PACA.  The complaint was determined to be valid, and consequently, Forest City is not permitted to “operate in the produce industry” for a time.  Because USDA found Forest City’s violations to be “repeated and flagrant,” under PACA, the Secretary of Agriculture had the authority to revoke the company’s license.  According to USDA’s press release, Forest City will be able to reapply for a PACA license on September 21, 2020.  The principal officers of the company are also banned from being “employed by or affiliated with any PACA licensee” through September 21, 2019.  Since Forest City has been found to have violated PACA by participating in unfair conduct, the law states that the company is liable to those they took advantage of “for the full amount of damages,” which in this case, would be the aforementioned $716,689.

What is PACA?

PACA was passed in 1930.  The Act’s purpose is to promote “fair business practices” when buying and selling “perishable agricultural commodit[ies].”  A perishable agricultural commodity is defined in the law as “fresh fruits and fresh vegetables of every kind and character,” which can also be “frozen or packed in ice,” including “cherries in brine.”

PACA contains a list of what the law considers to be “unfair conduct.”  Such unfair conduct is unlawful for commission merchants, dealers, or brokers, who are essentially the middle-men of the perishable agricultural commodities industry, to engage in.  The following actions are deemed to be “unfair” under the law, and therefore illegal when the transaction is in interstate or foreign commerce:

  • Using any unfair, unreasonable, discriminatory, or deceptive practice when weighing, counting, or determining the quantity of a perishable agricultural commodity;
  • Rejecting or failing to deliver perishable agricultural commodities under the terms of the contract, if there is no reasonable cause for the failure;
  • Discarding, dumping, or destroying any perishable agricultural commodity received without reasonable cause;
  • Making a false or misleading statement, for a fraudulent purpose, in connection with any transaction involving a perishable agricultural commodity; failing or refusing to make full, prompt, payment in such a transaction; or failing to perform any specification or duty in such a transaction without reasonable cause;
  • Misrepresenting by word, act, mark, stencil, label, statement, or deed, the character, kind, grade, quality, quantity, size, pack, weight, condition, degree of maturity, or State, country, or region of origin of any perishable agricultural commodity;
  • Removing, altering, or tampering with any card, stencil, stamp, tag, or other notice upon any container or railroad car containing any perishable agricultural commodity, if such notice contains a certificate or statement under the authority or law or regulation of the federal or state government concerning the grade, quality, or origin of the commodity;
  • Making any change by way of substitution or otherwise in the contents of a load or lot of any perishable agricultural commodity after it has been officially inspected for grading and certification.

PACA also makes it mandatory for commission merchants, dealers, and brokers to be licensed.  In order to obtain a license, both an application and fee are required.  If all the requirements are met, the Secretary of Agriculture may issue the license.  Licenses can be annual or cover multiple years, depending on the type of entity licensed.  The Secretary may also suspend or revoke a license.

Violations, Complaints, and Liability

PACA specifically states that when any commission merchant, dealer, or broker is found to have participated in unfair conduct (discussed above), they are “liable” to those injured by their conduct “for the full amount of the damages sustained in consequence of such violation.”  Liability can be enforced through the complaint process or through the courts.  Complaints of unfair conduct can be sent to the Secretary of Agriculture up to nine months after the unfair conduct occurs.  Notifications of violations by merchants, dealers, or brokers can also be sent to the Secretary by officers of state agencies.  The Secretary is then able to investigate complaints and notifications.  If the investigation shows violations occurred, then the Secretary can “have the complaint served” on the violator.   If the alleged damages are more than $30,000, the Secretary must provide the violator with the opportunity for a hearing.  After a hearing, the Secretary can “determine whether or not the commission merchant, dealer, or broker has violated” any part of the law regarding “unfair conduct.”

Those interested in background information on PACA, fees, licensing, etc. can find it at the USDA’s website, here.  The federal regulations that accompany PACA are here.

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The Ag Law Harvest

Movement on Ohio “Watersheds in Distress” rules.  As we have reported on several times this summer, Governor John Kasich signed an executive order on July 11, 2018 directing ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.”  Since that time, ODA has submitted a proposed rule dealing with Watersheds in Distress.  Amendments were made to the proposed rule after evaluating the first set of public comments, and ODA is now resubmitting the rules package.  ODA reopened the proposed rule for public comments, but it closed the comment period on September 7, 2018.  Information about the proposed rules, as well as how and where to comment, can be found here (click on the “Stakeholder Review” tab and then the “Soil and Water Conservation – Watersheds in Distress OAC 901:13-1” drop down option).  A draft of the newly amended proposed rules is available here.

WOTUS woes continue.  The Obama administration’s hotly contested “Waters of the United States” Rule is back in the news, and this time, where it applies is dependent on where you live.  A background on the rule can be found in our previous blog post.  The rule basically expanded which bodies of water qualify as “waters of the United States,” which in turn protected more waters under the Clean Water Act.  The rule became effective in 2015.  Since that time, U.S. District Courts in North Dakota and Georgia have issued preliminary injunctions against Obama’s WOTUS Rule, which means it cannot be carried out in twenty-four states.  Additionally,  last summer, the EPA and Army Corps of Engineers, under the direction of President Trump, announced their plan to repeal Obama’s WOTUS Rule and replace it with the definition of WOTUS “that existed prior to 2015” until a new definition could be developed. Trump’s  rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition.   However, in a ruling on August 16, 2018, in a U.S. District Court in South Carolina, Judge David Norton determined that the Trump administration “failed to comply with” requirements of the Administrative Procedure Act when it enacted its rule.  This means that the Trump rule repealing and replacing the definition of WOTUS is invalidated.  As a result of Judge Norton’s decision, in the remaining twenty-six states without an injunction, the Obama administration’s version of the rule has been reinstated.  Ohio is one of the twenty-six states where the Obama rule currently applies.  Will the Trump administration and the EPA respond to Norton’s decision by announcing yet another new WOTUS rule?  Follow the Ag Law Blog for any updates.  In the meantime, the country remains nearly split in half by which version of the WOTUS rule is carried out.

Regulators, meet “meat.”  Under a new Missouri law, it is a criminal offense to misrepresent a product as “meat” if there is, in fact, no meat.  Missouri’s revision of its meat advertising laws took effect on August 28th, and has been dubbed by many as the first attempt by a state to regulate what qualifies as meat.  Defining meat as “any edible portion of livestock, poultry, or captive cervid carcass,” the law prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  Violations are treated as a misdemeanor, with a fine up to $1,000 and possible jail time.  The Missouri Department of Agriculture has said that it intends to enforce the law, but that it plans to give affected companies until the start of next year to bring their labels into compliance.  Supporters of the law, like the Missouri Cattlemen’s Association, argue that it will provide consumers with accurate information about their food, and also protect meat producers from unfair labeling of plant-based or lab-grown meat alternatives.  Opponents have already filed a lawsuit to prevent enforcement, arguing that the law restricts free speech and improperly discriminates against out-of-state producers of meat alternatives.  The named plaintiff on the lawsuit is Turtle Island Foods, an Oregon company that does business under the names Tofurky and The Good Foods Institute.  The company makes plant-based food products, and is joined in its opposition by the American Civil Liberties Union of Missouri and the Animal Legal Defense Fund.  Beyond Missouri, the National Cattlemen’s Beef Association has listed the issue as a top policy priority for this year, and the U.S. Cattlemen’s Association has petitioned the USDA to adopt stricter labeling requirements.  As this issue develops, the Ag Law Blog will keep you updated.

USDA taps Commodity Credit Corporation to aid farmers.  Readers are no doubt aware of global trade disputes in which other countries have increased tariffs on American agricultural exports.  Given the extensive news coverage, the Harvest will not attempt to cover the dispute in depth; however, one point that has been less covered is the tool that the USDA has selected to provide relief to impacted farmers: the Commodity Credit Corporation.  What is it?  The Commodity Credit Corporation (CCC) is a federal government entity created during the Great Depression in 1933 to “stabilize, support, and protect farm income and prices.”  Since 1939, it has been under the control of the Secretary of Agriculture, although it is managed by a seven member Board of Directors.  CCC is technically authorized to borrow up to $30 billion from the U.S. Treasury at any one time, but due to trade agreements, that number is, in reality, much smaller.  This gives USDA access to billions of dollars in funding without having to go to Congress first.  The money can be used to provide loans or payments to agricultural producers, purchase agricultural products to sell or donate, develop domestic and foreign markets, promote conservation, and more.  CCC has no staff, but is instead administered through other USDA agencies, largely the Farm Service Agency and Agricultural Marketing Service.  On August 27th, Secretary of Agriculture Sonny Perdue announced that USDA plans to tap the Commodity Credit Corporation for up to $12 billion worth of aid to farmers affected by recent tariffs.  The Market Facilitation Program will provide direct payments to eligible corn, cotton, dairy, hog, sorghum, soybean, and wheat producers, and the Food Purchase and Distribution Program will purchase up to $1.2 billion in select commodities.  For more about the Commodity Credit Corporation, check out its website.

Bayer reports increasing number of lawsuits against newly acquired Monsanto.  Bayer, the German pharmaceutical and life sciences company that acquired Monsanto early this summer, has indicated that there are an increasing number of lawsuits in the United States alleging that its weed killers cause cancer.  According to the Wall Street Journal, there were roughly 8,700 plaintiffs seeking monetary damages from Bayer as of late August, a sharp increase from the 5,200 plaintiffs just months earlier.  Many of these lawsuits involve cancer patients who claim that Monsanto’s glyphosate-containing herbicides like Roundup caused their cancer.  As we reported in a previous edition of the Harvest, one person’s successful lawsuit against Monsanto resulted in a San Francisco jury award of $289.2 million for failing to warn consumers of the risks posed by its weed killers.  Monsanto is expected to file motions for a new trial and for the judge to set aside the verdict, and may ultimately appeal the decision.  These cancer-related claims come at a time when another Monsanto product, Dicamba, is causing great controversy.  Stay tuned to the Ag Law Blog as these lawsuits continue to develop.

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Ohio General Assembly considers bills about Cottage Foods, Dogs on Patios

Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program

A few bills related to food preparation and dining in the great outdoors are on the move in the Ohio General Assembly.

One of the bills, Senate Bill 233, would allow those who produce cottage foods to do so in a firebrick oven on a patio connected to the producer’s residence.   According to Ohio law, cottage foods are non-hazardous and are produced in a person’s home.  Cottage foods can include, but are not necessarily limited to: bakery products, jams, jellies, candy, and fruit butter.  If passed, SB 233 would change the current law, which only allows cottage foods to be prepared in an oven or on a stove inside the cottage food producer’s residence.  SB 233 would allow producers to use both an inside oven and an outside firebrick oven.  The bill is currently being debated in the Senate Health, Human Services & Medicaid Committee.

Two identical bills concerning dogs on restaurant patios are working their way through the two houses of the General Assembly—House Bill 263 and SB 182.  The bills would prohibit state agencies and local boards of health from adopting rules banning dogs “in an outdoor dining area of a retail food establishment or food service operation.”  Even though the government would not be able to ban dogs in those areas, the bills would allow individual restaurants to decide to keep dogs out of their outdoor areas, with the exception of service dogs.  HB 263 is being considered in the House Economic Development, Commerce & Labor Committee.  SB 182 is currently being discussed in the Senate Health, Human Services & Medicaid Committee.

Will cottage food producers be able to make tasty treats in firebrick ovens?  Will your canine companion generally be allowed to accompany you on restaurant patios throughout Ohio?  Stay tuned to the Ag Law Blog for any updates on these bills.

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