Category Archives: Uncategorized

March Madness Brings Surface Water Drainage

Depending upon who you talk to and when you talk to them, Ohio is either blessed or cursed as a water rich state.  Droughts certainly occur, but in the past couple of years Ohio farmers have experienced record breaking rainfall both by measures of inches and intensity.  As spring showers bring about a transition from winter to spring, we wanted to take a moment to look at Ohio’s surface water drainage laws.

Ohio courts follow the “reasonable use” doctrine for surface water drainage.  Under this doctrine, a landowner may drain surface water from his or her property in a reasonable manner.  When a landowner’s attempts to drain surface water from his or her property seem to result in harm to the property of another, legal issues may arise.

Courts and juries generally determine whether a landowner acted reasonably by looking at a number of factors, such as: the utility of the drainage, the gravity of the harm, the practicality of avoiding the harm, and whether it is fair to relieve the landowner of liability.  These factors are examined and balanced on a case-by-case basis to determine whether the landowner should be found liable for the harm experienced by another.

Certainly there are ways to resolve a dispute before resorting to a lawsuit.  Landowners may talk with their neighbors to work out an agreeable solution.  Landowners also have the option to work with the county Soil and Water Conservation District or county engineer’s office to file a petition for a drainage improvement project that would address the drainage need.

For more information, check out our law bulletin on Surface Water Drainage Rights in Ohio, which is available HERE.  It explains the “reasonable use” doctrine, describes how reasonableness is determined, and discusses remedies for harm caused by drainage.

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Legislative Committees Take Shape

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

The 133rd Ohio General Assembly and 116th United States Congress have released their committee assignments for the upcoming legislative terms.  Chamber leaders like the House Speaker or party leaders generally select committee chairs and members, but the members themselves often have an opportunity to preference their assignments.  Below are the lists of representatives and senators on each of the agriculture-related committees, with brief biographies of committee leaders included.  Ohio readers may note that the agriculture committees for the U.S. House and U.S. Senate only have one member each from Ohio: Representative Marcia Fudge and Senator Sherrod Brown.

Here are the names to know for agriculture:

Ohio House of Representatives Agriculture and Rural Development Committee

  • Chairman J. Kyle Koehler (R-Springfield). Representative Koehler is a third term member of the Ohio House, and received a Bachelor’s of Science in Computer Science from Wright State University.  He worked for a number of years as a software engineer for government contractors, as well as working for his family business, K.K. Tool Company.
  • Vice-Chair J. Todd Smith (R-Germantown). Representative Smith is entering his first full term as a member of the Ohio House, and is a pastor in his home community.
  • Ranking Member Juanita O. Brent (D-Cleveland). Representative Brent is a first term member of the Ohio House, and has experience in non-profit and community engagement work.
  • Jack Cera (D-Bellaire)
  • Randi Clites (D-Ravenna)
  • Paula Hicks-Hudson (D-Toledo)
  • Don Jones (R-Harrison County)
  • Darrell Kick (R-Loudonville)
  • Mary Lightbody (D-Westerville)
  • Susan Manchester (R-Lakeview)
  • Don Manning (R-New Middletown)
  • John Patterson (D-Jefferson)
  • Jena Powell (R-Arcanum)
  • Tim Schaffer (R-Lancaster)
  • Bill Seitz (R-Cincinnati)
  • Reggie Stoltzfus (R-Minerva)
  • Casey Weinstein (D-Hudson)

Ohio Senate Agriculture Committee

  • Chairman Frank Hoagland (R-Mingo Junction). Senator Hoagland is a first term member of the Ohio Senate.  He owns a small business, and has nearly 30 years of experience as a Navy SEAL.
  • Vice-Chair Brian Hill (R-Zanesville). Senator Hill is entering his first full term in the Ohio Senate.  He holds a Bachelor’s Degree in Animal Science and an Associate’s Degree in Applied Science from Ohio State.  Senator Hill raises beef cattle and grows crops on his family farm, and previously served as a Muskingum County Commissioner.  Before entering the Ohio Senate, Senator Hill served in the Ohio House, where he chaired the House Agriculture and Rural Development Committee.
  • Ranking Member Sean J. O’Brien (D-Bazetta). Senator O’Brien is a first term member of the Ohio Senate, and previously served three terms in the Ohio House.  He holds a law degree from the University of Akron, and served as a prosecuting attorney for a number of years.
  • Teresa Fedor (D-Toledo)
  • Bob Hackett (R-London)
  • Stephen Huffman (R-Tipp City)
  • Stephanie Kunze (R-Hilliard)
  • Tina Maharath (D-Canal Winchester)
  • Rob McColley (R-Napoleon)
  • Bob Peterson (R-Washington Court House)
  • Joe Uecker (R-Miami Township)

United States House of Representatives Agriculture Committee

  • Chairman Collin Peterson (D-Minnesota). Representative Peterson represents the western portion of Minnesota, which is predominantly rural and agricultural.  He grew up on a farm, and was a Certified Public Accountant.  He has many years of legislative experience at the state and federal level, and takes a keen interest in federal tax policy and conservation as it pertains to agriculture.
  • Vice-Chair Alma Adams (D-North Carolina). Representative Adams’ district includes much of Charlotte, North Carolina and the surrounding areas.  She taught art for over 40 years, and received her Ph.D. in Art Education and Multicultural Education from the Ohio State University in 1981.  She has many years of legislative experience at the local, state, and federal level, and takes a keen interest in nutrition and education.
  • Ranking Member K. Michael Conaway (R-Texas). Representative Conaway represents much of central Texas.  He has a business background, having worked with former-President George W. Bush as the chief financial officer for Bush Exploration, an oil company.
  • David Scott (D-Georgia)
  • Jim Costa (D-California)
  • Marcia Fudge (D-Ohio)
  • Jim McGovern (D-Massachusetts)
  • Filemon Vela (D-Texas)
  • Stacey Plaskett (D-U.S. Virgin Islands)
  • Abigail Spanberger (D-Virginia)
  • Jahana Hayes (D-Connecticut)
  • Antonio Delgado (D-New York)
  • TJ Cox (D-California)
  • Angie Craig (D-Minnesota)
  • Anthony Brindisi (D-New York)
  • Jefferson Van Drew (D-New Jersey)
  • Josh Harder (D-California)
  • Kim Schrier (D-Washington)
  • Chellie Pingree (D-Maine)
  • Cheri Bustos (D-Illinois)
  • Sean Patrick Maloney (D-New York)
  • Salud Carbajal (D-California)
  • Al Lawson (D-Florida)
  • Tom O’Halleran (D-Arizona)
  • Jimmy Panetta (D-California)
  • Ann Kirkpatrick (D-Arizona)
  • Cindy Axne (D-Iowa)
  • Glenn ‘GT’ Thompson (R-Pennsylvania)
  • Austin Scott (R-Georgia)
  • Rick Crawford (R-Arkansas)
  • Scott DesJarlais (R-Tennessee)
  • Vicky Hartzler (R-Missouri)
  • Doug LaMalfa (R-California)
  • Rodney Davis (R-Illinois)
  • Ted Yoho (R-Florida)
  • Rick Allen (R-Georgia)
  • Mike Bost (R-Illinois)
  • David Rouzer (R-North Carolina)
  • Ralph Abraham (R-Louisiana)
  • Trent Kelly (R-Mississippi)
  • James Comer (R-Kentucky)
  • Roger Marshall (R-Kansas)
  • Don Bacon (R-Nebraska)
  • Neal Dunn (R-Florida)
  • Dusty Johnson (R-South Dakota)
  • Jim Baird (R-Indiana)
  • Jim Hagedorn (R-Minnesota)

United States Senate Agriculture, Nutrition, & Forestry Committee

  • Chairman Pat Roberts (R-Kansas). Senator Roberts has served in both houses of Congress since the 1980s, and was the first person to have been the chair of both the House and Senate agriculture committees.  His educational background is in journalism, and he served in the U.S. Marine Corps.
  • Ranking Member Debbie Stabenow (D-Michigan). Senator Stabenow has served in both houses of Congress, and began her career in public service at the county and state level in the late 1970s.  She has long taken an interest in agricultural issues, and serves as a co-chair of the U.S. Senate Great Lakes Task Force.
  • Sherrod Brown (D-Ohio)
  • Mitch McConnell (R-Kentucky)
  • Patrick Leahy (D-Vermont)
  • John Boozman (R-Arkansas)
  • John Hoeven (R-North Dakota)
  • Amy Klobuchar (D-Minnesota)
  • Joni Ernst (R-Iowa)
  • Michael Bennet (D-Colorado)
  • Cindy Hyde-Smith (R-Mississippi)
  • Kirsten Gillibrand (D-New York)
  • Mike Braun (R-Indiana)
  • Robert P. Casey Jr. (D-Pennsylvania)
  • David Perdue (R-Georgia)
  • Tina Smith (D-Minnesota)
  • Chuck Grassley (R-Iowa)
  • Richard Durbin (D-Illinois)
  • John Thune (R-South Dakota)
  • Deb Fisher (R-Nebraska)

As these committees take action over the next two years, we will do our best to keep you in the know.  Stay tuned to the Ohio Ag Law Blog for updates.

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In the Weeds: Taking a Closer Look at the Lake Erie Bill of Rights

Lake Erie once again made headlines when the Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” (LEBOR) initiative could be placed on the Toledo ballot on February 26, 2019.  The decision raised alarm in Ohio’s agricultural community and fears that, if passed, the measure will result in litigation for farmers in the Lake Erie watershed.

The OSU Extension Agricultural and Resource Law Program took a close look at LEBOR.  Specifically, we wanted to know:

  • What does Toledo’s Lake Erie Bill of Rights petition mean?
  • What does the petition language say?
  • What happened in the legal challenges to keep the petition off the ballot?
  • Have similar efforts been successful, and if not, why not?
  • Who has rights in Lake Erie?
  • What rights do business entities have?

We examine all of these questions, plus a number of frequently asked questions, in a new format called “In the Weeds.”  While many of our readers know of our blog posts and law bulletins, explaining this issue required something different.  Using “In the Weeds” is a way for us to dig into a current legal issue more in depth.

For answers to the questions above and more, CLICK HERE to view the new “In the Weeds: The Lake Erie Bill of Rights Ballot Initiative.”

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2018 Year in Review: Ohio Legislation Edition

Written by: Evin Bachelor, Law Fellow

We are full steam ahead in 2019, and so far we have held to our new year’s resolutions.  However, we want to take a quick look in the rearview mirror.  Ohio legislators passed a number of bills in 2018 that affect Ohio agriculture.  They range from multi-parcel auction laws to broadband grants, and oil & gas tax exemptions to hunting licenses.  Here are some highlights of bills that the Ohio General Assembly passed and former Governor Kasich signed in 2018.

  • House Bill 500, titled “Change township law.”  As mentioned in a previous blog post, the Ohio General Assembly made a number of generally minor changes to Ohio’s township laws with House Bill 500.  The changes included, among other things, requiring a board of township trustees to select a chairperson annually, modifying how vacating township roads and name changes are carried out, allowing fees for appealing a zoning board decision, clarifying how a board can suspend a member of a zoning commission or board of appeals, and removing the requirement for limited home rule townships to submit a zoning amendment or resolution to a planning commission.  To learn about more of the changes that were made, visit the Ohio General Assembly’s H.B. 500 webpage here.
  • House Bill 480, titled “Establish requirements for multi-parcel auctions.”  The Ohio Department of Agriculture regulates auctions, and H.B. 480 gave ODA authority to regulate a new classification of auctions: the multi-parcel auction.  Revised Code § 4707.01(Q) will define these as “any auction of real or personal property in which multiple parcels or lots are offered for sale in various amalgamations, including as individual parcels or lots, combinations of parcels or lots, and all parcels or lots as a whole.”  For more information, visit the Ohio General Assembly’s H.B. 480 webpage here.
  • House Bill 522, titled “Allow outdoor refreshment area to include F permit holders.”  A municipality or township may create a “designated outdoor refreshment area” where people may walk around the area with their opened beer or liquor.  Previously, only holders of certain D-class permits (bars, restaurants, and clubs) and A-class permits (alcohol manufacturers) could allow their patrons to partake in a designated open area.  H.B. 522 will allow holders of an F-class liquor permit to also allow their patrons to roam in the designated area with an open container.  F-class liquor permits are for festival-type events of a short duration.  However, holders of either permits D-6 (allowing Sunday sales) or D-8 (allowing sales of growlers of beer or of tasting samples) will no longer be eligible for the open container exception.  For more information, visit the Ohio General Assembly’s H.B. 522 webpage, here.
  • Senate Bill 51, titled “Facilitate Lake Erie shoreline improvement.”  As mentioned in a previous blog post, the primary purpose of Senate Bill 51 was to add projects for Lake Erie shoreline improvement to the list of public improvements that may be financed by a special improvement district.  S.B. 51 also instructed the Ohio Department of Agriculture (“ODA”) to establish programs to assist in phosphorous reduction in the Western Lake Erie Basin.  This adds to the previous instructions given to ODA in S.B. 299 regarding the Soil and Water Phosphorous Program.  S.B. 51 further provided funding for a number of projects, ranging from flood mitigation to MLS stadium construction.  For more information, visit the Ohio General Assembly’s S.B. 51 webpage here.
  • Senate Bill 299, titled “Finance projects for protection of Lake Erie and its basin.”  Largely an appropriations bill to fund projects, S.B. 299 primarily targeted water quality projects and research.  ODA received an additional $3.5 million to support county soil and water conservation districts in the Western Lake Erie Basin, plus $20 million to establish water quality programs under a Soil and Water Phosphorous Program.  Further, the Ohio Department of Natural Resources (“ODNR”) received an additional $10 million to support projects that divert dredging materials from Lake Erie.  Stone Laboratory, a sea grant research program, received an additional $2.65 million.  The bill also created a mentorship program called OhioCorps, and set aside money for grants to promote broadband internet access.  For more information, visit the Ohio General Assembly’s S.B. 299 webpage here.
  • Senate Bill 257, titled “Changes to hunting and fishing laws.”  ODNR may now offer multi-year and lifetime hunting and fishing licenses to Ohio residents under S.B. 257.  Further, the bill creates a resident apprentice senior hunting license and an apprentice senior fur taker permit, and removes the statutory limits on the number of these permits a person may purchase.  The bill also creates a permit for a Lake Erie Sport Fishing District, which may be issued to nonresidents to fish in the portions of Lake Erie and connected waters under Ohio’s control.  For more information, visit the Ohio General Assembly’s S.B. 257 webpage here.
  • House Bill 225, titled “Regards plugging idle or orphaned wells.”  H.B. 225 creates a reporting system where a landowner may notify ODNR’s Division of Oil and Gas Resources about idle and orphaned oil or gas wells.  Upon notification, the Division must inspect the well within 30 days.  After the inspection, the Division must determine the priority for plugging the well, and may contract with a third party to plug the well.  To fund this, the bill increases appropriations to the Oil and Gas Well Fund, and increases the portion of the fund that must go to plugging oil and gas wells.  For more information, visit the Ohio General Assembly’s H.B. 225 webpage here.
  • House Bill 430, titled “Expand sales tax exemption for oil and gas production property.”  Certain goods and services directly used for oil and gas production have been exempted from sales and use taxes, and H.B. 430 clarifies what does and does not qualify for the exemption.  Additionally, property used to control water pollution may qualify for the property, sales, and use tax exemptions if approved by ODNR as a qualifying property.  H.B. 430 also extends the moratorium on licenses and transfers of licenses for fireworks manufacturers and wholesalers.  For more information, visit the Ohio General Assembly’s H.B. 430 webpage here.
  • Senate Bill 229, titled “Modify Board of Pharmacy and controlled substances laws.”  The Farm Bill’s opening the door for industrial hemp at the federal level has led to a lot of conversations about controlled substances, which we addressed in a previous blog post.  Once its changes take effect, Ohio’s S.B. 229 will remove the controlled substances schedules from the Ohio Revised Code, which involve the well-known numbering system of schedules I, II, III, IV, and V.  Instead, the Ohio Board of Pharmacy will have rulemaking authority to create schedules and classify drugs and compounds.  Prior to the removal of the schedules from the Revised Code, the Board of Pharmacy must create the new schedules by rule.  S.B. 229 also mentions cannabidiols, and lists them as schedule V under the current system if the specific cannabidiol drug has approval from the Food and Drug Administration.  For more information, visit the Ohio General Assembly’s S.B. 229 webpage here.

The end of 2018 effectively marked the end of the 132nd Ohio General Assembly, and 2019 marks the start of the 133rd Ohio General Assembly.  Any pending bills from the 132nd General Assembly that were not passed will have to be reintroduced if legislators wish to proceed with those bills.  Stay tuned to the Ag Law Blog for legal updates affecting agriculture from the Ohio General Assembly.

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Hemp for One, Hemp for All?  The Farm Bill, Industrial Hemp and what it means for Ohio

Written by Ellen Essman, Senior Research Associate

Hemp is one of the most talked-about provisions of the new Farm Bill passed earlier this month by Congress and signed by the President on December 20.   There’s a lot of excitement about the removal of federal restrictions on hemp production and the economic opportunities for growing hemp.  But what exactly does the Farm Bill say about hemp?  Can Ohioans now grow, use and sell hemp and hemp products?  We dove into the 807 pages of the Farm Bill Conference Report (available here for your reading pleasure) to find answers to your questions about the new legal status of hemp and hemp cultivation.

What is hemp?

Before we go much further in this discussion, it’s important to understand that both hemp and marijuana are species of cannabis, but they have different properties.  Of particular note is the fact that marijuana contains much more tetrahydrocannabinol (THC) than hemp.  THC is the part of a cannabis plant that can cause a psychoactive effect in certain concentrations, but hemp plants generally do not contain enough THC to produce a “high.”  Hemp has many uses— it can be used for construction materials, fabrics and clothing, and animal bedding.  It has even been discussed as a potential cover crop.  Cannabidiol, or CBD, is a very popular extract of the hemp plant that is alleged to help those with anxiety, pain, inflammation, and other ailments, but not much research has been done to verify its effectiveness for medical use.  Note that CBD is also an extract of the higher THC marijuana plant.

Hemp is removed from the federal list of controlled substances—but only if it meets certain requirements

First and foremost, the Farm Bill removes hemp from the federal list of controlled substances.  Section 12619 of the bill removes hemp from the definition of marijuana, which is still an illegal drug under federal law.  In the same section, the bill federally decriminalizes tetrahydrocannabinols (THC) in hemp.  Not all hemp, however, is subject to this exemption.  Only hemp and THC as defined in the Farm Bill and as grown under the conditions set forth in the Farm Bill are accorded the exemption.

So, how does the Farm Bill change the definition of hemp?  The main hemp provision of the bill, Section 10113, separates hemp from the definition of marijuana and redefines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

Coming soon: state and federal hemp production plans

The new law doesn’t allow a producer to start growing hemp today.  Instead, Section 10113 of the Farm Bill describes the two situations under which a producer will be able to engage in legal hemp production in the future.  In the first situation, the States or Indian tribes may take charge of the regulation of hemp production within their boundaries.  To do this, a State must first submit a plan to the USDA through their state department of agriculture.  A State plan must include:

  1. A way to keep track of land where hemp is produced within the state;
  2. Methods the state will use to test how much THC is in hemp plants;
  3. A way to dispose of plants or products that have a higher THC concentration than is legally allowed;
  4. A procedure for inspecting hemp producers;
  5. A plan for enforcing the law;
  6. A system for dissemination of a hemp producer’s information to the USDA; and
  7. Assurances that the state has the resources to carry out the plan.

A producer who wants to cultivate hemp in a State that has an approved hemp production plan must first comply with the State’s plan before beginning to grow hemp.   Predictions are that it may take a State about a year to create its hemp production plan and obtain the required USDA approval for the plan.

The second situation for growing hemp comes into play if a State or Tribe does not submit a hemp plan to USDA.  In this case, as long as the State has not limited the regulation or production of hemp under state law, the Secretary of Agriculture for the USDA may establish a plan “to monitor and regulate” hemp production within that State.  A plan established by the USDA must meet the same criteria as a plan written by a State, and the law also requires the USDA to establish a licensing procedure for producers.   Thus, a producer in a State that doesn’t have a hemp plan could legally grow hemp by obtaining a USDA hemp license through the hemp regulations that the USDA will develop, unless the State has prohibited hemp cultivation.  Section 10113 specifically states that it does not preempt or limit any state law that “regulates the production of hemp” as well as any state law that is “more stringent” than federal law in regulating hemp production.  Thus, a State can outlaw hemp production within its boundaries or include additional restrictions and requirements in its State plan as long as the plan complies with the federal law requirements.

Handling producer violations

What if a hemp producer doesn’t comply with the new law or with the State or USDA hemp production plan?  Section 10113 also describes how violations of the law will be handled.  If a hemp producer negligently violates a State or USDA hemp production plan, the producer could be subject to enforcement.  One negligent violation of the plan would not trigger criminal punishment, but the violator would have to comply with a corrective action plan prescribed by the State or USDA.  However, if a producer negligently violates a plan three times in five years, the producer will be banned from producing hemp for five years. Examples of negligent violations in the law include: not providing a legal description of the land where hemp is produced, growing hemp without obtaining a license “or other required authorization” from the State, Tribe, or USDA, or producing hemp with a THC concentration higher than 0.3 percent. If a producer violates a State or USDA plan “with a culpable mental state greater than negligence” (that is, purposely, knowingly, or recklessly), then the State or USDA must report the violation to law enforcement authorities.  Furthermore, persons convicted of a felony relating to a controlled substance under state or federal law are generally barred from hemp production for ten years following the date of their conviction, with the exception of persons convicted of a controlled substances felony but lawfully participating in a pilot program under the 2014 Farm Bill.  Finally, if a person falsifies an application to participate in hemp production, that person will be totally barred from producing hemp.

Legal hemp not to be prohibited in interstate commerce

The new law also allows for the interstate commerce of legally produced hemp and hemp products. Section 10114 says that a State or Indian Tribe cannot prevent the transportation or shipment of legally produced hemp through its state or territory.  While a State may ban the sale of hemp or hemp products solely within its borders, it must allow hemp products to move freely through the State.  For example, imagine that Pennsylvania allows hemp production but Ohio does not.  Producers of legal hemp in Pennsylvania could not sell the hemp within Ohio, but Ohio could not prohibit a truck, train, or other type of transport from carrying the hemp through Ohio to a destination outside of Ohio.

Hemp becomes eligible for crop insurance

Importantly, the Farm Bill also addresses hemp production risk by amending the Federal Crop Insurance Act to include hemp.  Section 11119 adds hemp to the definition of “agricultural commodities” that can be insured and section 11106 adds legally produced hemp to the list of crops that can be insured even after harvested.  Other provisions in Title XI waive marketability requirements for researching hemp.

Making way for hemp research funding

Several provisions in the Farm Bill ensure that it is legally permissible to fund hemp research.  Section 7129 amends the National Agricultural Research, Extension, and Teaching Policy Act to allow the Secretary of Agriculture to award grants for researching hemp and the development of hemp products.  In section 7501, the bill amends the Critical Agricultural Materials Act to allow research on hemp, meaning that Congress believes hemp has the “potential of producing critical materials for strategic and industrial purposes.”

Finally, section 7605 amends the hemp pilot program language from the 2014 Farm Bill (for information on the pilot program, see our previous blog post).  The Secretary of Agriculture is tasked with conducting a study on the pilot program and submitting a report on the study to Congress within a year.  Section 7605 also repeals the hemp pilot programs, but only one year after final regulation on hemp production under section 10113 is published.

How does current Ohio law treat hemp production?

Ohio law defines marijuana as “all parts of a plant of the genus cannabis…” in Ohio Revised Code section 3719.01.  Hemp is in the genus cannabis, as discussed earlier in this post.  Therefore, under current Ohio law, hemp is the same as marijuana.  Marijuana is a controlled substance under Ohio law, and the law states that “[n]o person shall knowingly obtain, possess, or use a controlled substance.”

What about hemp-derived CBD oil?  Ohio enacted a medical marijuana law in 2016, although dispensaries in the state have yet to open (so far, only one dispensary in the state has been licensed).  In order to obtain medical marijuana in Ohio, it would have to be prescribed by a physician with which the patient has a “bona fide physician-client relationship,” and the patient would have to have a qualifying medical condition.  Medical marijuana can be prescribed and used in oil form under the law.  Since Ohio law lumps hemp in with marijuana, this means that in order to obtain CBD oil derived from hemp, a person would also have to follow the steps to obtain medical marijuana. Hemp-derived CBD oil also does not fall under any exceptions in Ohio’s definition of marijuana.  Ohio’s State Board of Pharmacy specifically stated in a guidance document that CBD oil can only be legally dispensed from a licensed dispensary.  In releasing this guidance, the Board of Pharmacy is purporting to act under the rulemaking authority granted under ORC 3796.04.

Note, however, that there are exceptions to Ohio’s definition of marijuana.  According to Ohio law, marijuana “does not include the mature stalks of the plant, fiber produced from the stalks, oils or cake made from the seeds of the plant, or any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted from the mature stalks, fiber, oil or cake, or the sterilized seed of the plant that is incapable of germination.”  Since hemp falls under the definition of marijuana, it is possible that some of these exceptions could also apply to certain hemp products made from stalks or seeds. Thus, it is plausible that some hemp products could be sold and used in Ohio.  The law also states, however, that no person (other than those licensed under the medical marijuana law) “shall knowingly cultivate” marijuana.  Again, since hemp is part of the state’s definition of marijuana, under the law, that means that nobody can “knowingly cultivate” hemp, either.

In sum, it appears as though some excepted hemp products could be sold in Ohio, but not CBD oil, as it does not fall under the exception.  Even if some hemp products can be sold in Ohio, hemp itself cannot currently be cultivated in Ohio.  The new hemp language in the Farm Bill allows states to be more restrictive with hemp than the federal government, so Ohio can continue its ban on certain hemp products even with the new federal law.  The State cannot, however, stop the transportation of hemp across the State, as explained above.  Conversely, Ohio’s General Assembly could remove hemp from Ohio’s definition of marijuana and redefine hemp according to the Farm Bill’s new definition, which could allow for legal hemp cultivation under the Farm Bill.  For the time being, growing hemp in Ohio is not legal, but that is subject to change.

Stay tuned to the Ag Law Blog for continuing updates on hemp laws!

 

 

 

 

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An overview of Ohio’s Joint Committee on Agency Rule Review

Written by Ellen Essman

The Joint Committee on Agency Rule Review (JCARR) plays an important role in Ohio’s government. Its review of new and old rules assists in verifying that administrative rules are not duplicative, overly-burdensome, or costly.  Among other things, JCARR also helps to confirm that rules in fact carry out what the legislature had in mind when passing the law.  In fact, on Monday, December 10, 2018, JCARR will decide the fate of the controversial watersheds in distress rules (we explained the proposed rules in this blog post) prompted by Governor Kasich’s July 2018 executive order.

The Joint Committee on Agency Rule Review, often referred to by its acronym, JCARR, was enacted by the Ohio General Assembly in 1977, and is codified in section 101.35 of the Ohio Revised Code.  JCARR is charged with “review[ing] proposed new, amended, and rescinded rules” from Ohio’s administrative agencies.  The state’s administrative agencies are numerous and include the Ohio Department of Agriculture, the Ohio Environmental Protection Agency, and the Ohio Department of Natural Resources, just to name a few.  The administrative agencies are responsible for making the administrative rules to help carry out the Ohio General Assembly’s legislation.

Make-up of the committee

JCARR is made up of five members of each house of the Ohio General Assembly, meaning that five members from the house of representatives and five members from the senate make up the full committee.  The speaker of the house appoints the five representatives, and the president of the senate appoints the five senators.  The appointments must be bipartisan; each house may only appoint three members of the same political party.  During the general assembly’s first regular session, the speaker of the house chooses the chairperson of JCARR from their house appointees, and the president of the senate chooses the vice-chair.  During the second regular session, the chair and vice-chair are chosen in the reverse.

Conditions that rules must meet

If JCARR reviews an administrative rule and finds that rule to “violates one or more” of six requirements, the committee may “make a recommendation to invalidate the rule.”  The six requirements are as follows:

  1. The rules do not exceed the scope of the rule-making agency’s statutory authority;
  2. The rules do not conflict with a rule of that agency or another rule-making agency;
  3. The rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed;
  4. The rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission (Revised Code 18);
  5. The rule-making agency has met the incorporation by reference standards for a text or other material as stated in Revised Code 72, Revised Code 121.75, or Revised Code 121.76; and
  6. If the rule has an adverse impact on business (Revised Code 52), the rule-making agency has demonstrated through the business impact analysis, the Common Sense Initiative office recommendations, and the agency’s memorandum of response to the recommendations, that the regulatory intent of the rule justifies its adverse impact on business.

Rule Invalidation

If a rule is found to violate any of the conditions listed above, a member of JCARR can move to recommend a resolution to invalidate the rule.  The motion for invalidation must include the reason for the invalidation specifically based on one or more of the above conditions.  The motion can be to invalidate the whole rule, or just part of the rule.  If the motion for invalidation is seconded by another committee member, the members of JCARR can then vote on the motion.  A majority of the committee is required to recommend a resolution for amended, revised, and rescinded rules.  A two-thirds super majority is required to recommend a resolution to invalidate a no-change 5 year review.

If a motion for invalidation passes JCARR, the rule is put into suspension, meaning the administrative agency cannot proceed with the rule.  A member of the committee then writes a concurrent resolution about invalidating the rule. Then, depending on which house the writer of the resolution comes from, the resolution goes to the house of representatives or senate, where the body has five session days to act on the resolution.  If that time lapses, or there is no majority vote within five days, then the resolution dies, meaning the rule would no longer be suspended.  If the resolution does pass the first body by majority vote, it then goes to the other house of General Assembly.  Again, in the second body, the resolution must be voted on within 5 session days and be passed by a majority vote.  If the resolution does not pass or is not voted on, again, the rule comes out of suspension.  Finally, if the concurrent resolution for invalidating the rule passes both the house and senate, the rule is invalidated.

5 Year Review of Rules

Administrative agencies in Ohio must review their administrative rules every five years.  The first part of the review requires the agency to ascertain whether or not the rule has a harmful effect on business in the state of Ohio. If the agency decides that the rule does have a bad impact on business, then the rule must be sent to the Common Sense Initiative office (CSI).  The CSI is charged with finding ways to diminish the effects on business.

After the analysis of the effect on business, the agency decides whether or not the rule needs to be updated or removed.  Upon deciding that a rule needs to be changed or removed, the agency must then file the rule with JCARR as a five year amended or rescinded rule.  Then, JCARR goes through the process described above—the committee determines whether the amended or rescinded rule violates any of the six requirements, and if it does, the committee follows the process for rule invalidation.

If the agency determines that the rule should remain as it is, then it should file the rule as a five year no-change rule.  JCARR then considers the following questions as pertains to the no-change rule:

  • Should the rule be continued based on the intent of the statute under which the rule was adopted?
  • Should the rule be amended to give more flexibility at the local level?
  • Should the rule be rescinded or eliminated because of unnecessary paperwork?
  • Does the rule meet the standards for incorporation by reference?
  • Does the rule duplicate, overlap, or conflict with other rules?
  • Is there a continued need for the rule?
  • If the rule has an adverse impact on business, did the rulemaker demonstrate through the business impact analysis, CSI recommendations, and the memorandum of response that the regulatory intent of the rule justifies its adverse impact on business?

If JCARR finds that one of the above questions was violated or not sufficiently addressed by the agency, then the committee can entertain a motion for invalidation of the rule, triggering the rule invalidation process discussed above.

More information

JCARR has an excellent website with informative videos and other information about its purpose and how it carries out the review process, available here.  For a deeper dive into JCARR and the review process, the committee’s procedure manual is also very helpful.

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The Ag Law Harvest

Written by: Evin Bachelor, Law Fellow

The midterm elections are over, and Thanksgiving is upon us.  A lot of activity is expected out of Washington and Columbus as the legislative sessions wind up.  The OSU Extension Agricultural and Resource Law team will continue to keep you up to date on the legal issues affecting agriculture as we enter into the holiday season.

Here’s our gathering of ag law news you may want to know:

State of Ohio sued over wind turbine setbacks.  Four farmers in Paulding County have joined with The Mid-Atlantic Renewable Energy Coalition to sue the State of Ohio over wind turbine setbacks added to the 2014 biennial budget that some allege curtailed wind energy development in Ohio.  In that budget bill, lawmakers included provisions late in the lawmaking process to amend Ohio Revised Code § 4906.20, which establishes the setback requirements for wind turbines.  Those provisions more than doubled the distance that wind turbines must be located away from the nearest residential structures.  The plaintiffs in this lawsuit allege that including these restrictions in the budget bill violated the single-subject provisions of the Ohio Constitution because the setbacks lack a “common purpose or relationship” to the rest of the budget bill.  On this issue, the Ohio Supreme Court said in the case In re Nowak (cited as 2004-Ohio-6777) that the single-subject rule is a requirement that legislators must abide by, but that only a “manifestly gross and fraudulent” violation will result in the law being struck down.  The plaintiff’s complaint is available here.  Stay tuned to the Harvest for updates.

Department of Labor proposes rule requiring H-2A advertisements be posted online.  The U.S. Department of Labor (DOL) published a notice of proposed rulemaking in the Federal Register on November 9th that would change how employers must advertise available positions before they may obtain H-2A worker permits.  H-2A permits are work visas for temporary agricultural workers who are non-U.S. citizens.  Currently, employers must advertise work in a local newspaper of general circulation for at least two consecutive days, one of which must be a Sunday.  This requirement is located in the Code of Federal Regulations at 20 C.F.R. § 655.151.  The DOL now proposes to modernize the recruitment advertising rule by requiring employers to post the jobs online instead of in print.  The DOL’s notice explained that it believes online postings would more effectively and efficiently give U.S. workers notice of job opportunities.  Further, the notice explained that the DOL intends to only require online advertisements, which would render newspaper advertisements unnecessary.  U.S. Secretary of Agriculture Sonny Perdue issued a press release in support of the DOL’s proposal.  The public may submit comments to the DOL about the proposed rule.  Those wishing to comment may do so until December 10th, 2018, by visiting the proposed rule’s webpage in the Federal Register.

LLC agreement to adjust member financial contributions must be in writing.  The Ohio Fourth District Court of Appeals recently affirmed a decision finding a verbal agreement to adjust contributions between members of a Limited Liability Company (LLC) to be unenforceable, even if the other party admitted to making the statements.  Ohio Revised Code § 1715.09(B) requires a signed writing in order to enforce a “promise by a member to contribute to the limited liability company,” and therefore the court could not enforce an oral agreement to adjust contributions.  The Fourth District Court of Appeals heard the case of Gardner v. Paxton, which was originally originally filed in the Washington County Court of Common Pleas.  The plaintiff, Mr. Gardener, argued that his business partner breached an agreement to share in LLC profits and losses equally.  In order to share equally, both parties would have needed to adjust their contributions, but Mr. Paxton only made verbal offers that were never reduced to writing.  Because there was no writing, Mr. Paxton’s statements were not enforceable by his business associate against him.

Ohio legislation on the move:

The Ohio General Assembly has returned from the midterm elections with a potentially busy lame duck session ahead of it.  Already a number of bills that we have been monitoring have seen activity in their respective committees.

  • Ohio Senate Agriculture Committee held first hearing on multi-parcel auction bill. State senators heard testimony on House Bill 480 last Tuesday, November 13th.  The bill would authorize the Ohio Department of Agriculture to regulate multi-parcel auctions, which are currently not specifically addressed in the Ohio Revised Code.  The bill also defines “multi-parcel auction,” saying such an auction is one involving real or personal property in which multiple parcels or lots are offered for sale in part or in whole.  The bill would also establish certain advertising requirements.  The bill’s primary sponsor, Representative Brian Hill of Zanesville, says that he introduced the bill in an effort to recognize by statute what auctioneers are already doing, and to do so without interrupting the industry.  The bill passed the Ohio House of Representatives 93-0 in June.  For more information on the legislation, visit the House Bill 480 page on Ohio General Assembly’s website or view this bill analysis prepared by the Ohio Legislative Service Commission.

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