A few weeks ago we attended the American Agricultural Law Association’s (AALA) annual conference, which was held in Portland, Oregon this year. While we were there, we had the opportunity to learn about numerous topics related to agricultural law.  One such topic was presented by our colleague from the National Sea Grant Law Center, Amanda Nichols.  Nichols presented her research on state “right-to-farm” statutes and their applicability to aquaculture. 

What is aquaculture?

For those who don’t know, aquaculture is defined by the National Oceanic and Atmospheric Administration (NOAA) as “the breeding, rearing, and harvesting of fish, shellfish, plants, algae, and other organisms in all types of water environments.”  Thus, aquaculture is essentially the farming of aquatic species in freshwater and saltwater, in manmade and natural bodies of water.

 What are right-to-farm laws?

Right-to-farm laws are meant to protect agricultural operations against nuisance lawsuits brought by neighboring landowners complaining about smell, dust, noise, or other annoyances.  In terms of “traditional,” terrestrial farming, for example, right-to-farm laws could potentially protect against lawsuits claiming the spreading or accumulation of livestock manure is a nuisance to neighbors.  Every state in the U.S. has their own right-to-farm statute, and some of the statutes protect farming operations more completely than others do.  For example, Ohio’s right-to-farm language provides farmers with a complete defense to civil nuisance lawsuits when certain conditions are met.  On the other hand, neighboring Michigan and Pennsylvania’s statutes provide no such defenses. 

Where aquaculture and right-to-farm laws overlap

In her research on the topic of which states include protection of aquaculture operations in their right-to-farm laws, Nichols found that twenty-six states, including Ohio, “expressly include fish or aquaculture within the scope of their right-to-farm protections.” As a result, any right-to-farm protections to traditional agriculture, as well as any conditions agricultural operations must meet in order for the right-to-farm language to apply, would also extend to aquaculture in those twenty-six states.  Nichols found that one state, New Jersey, did “not mention aquaculture or fish expressly” but has adopted a manual for best management practices (BMPs) for aquaculture within the state, which shows the state’s “intent” to protect aquaculture from nuisance lawsuits.  

Ohio’s right-to-farm legislation

As mentioned above, Ohio’s right-to-farm legislation “expressly include[s]” aquaculture.  It does so by defining “agricultural production” not only as “animal husbandry” or production of plants for “a commercial purpose,” but also as “commercial aquaculture” and “algaculture meaning the farming of algae.”

Ohio farmers, including those involved in aquaculture, have right-to-farm protection in two parts of the Ohio Revised Code (ORC).  ORC Chapter 929 establishes “agricultural districts.”  Generally, in order to place land in an agricultural district, the owner of the land must file an application with the county auditor.  Certain requirements must be met in order for an application to be accepted.  Slightly different rules apply if the land in question is within a municipal corporation or is being annexed by a municipality.  If the application is accepted, the land is placed in an agricultural district for five years.  The owner may submit a renewal application after that time is up.

Being part of an agricultural district in Ohio can help farmers and landowners to defend against civil lawsuits.  ORC 929.04 reads: 

In a civil action for nuisances involving agricultural activities, it is a complete defense if:

1. The agricultural activities were conducted within an agricultural district;
2. Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;
3. The plaintiff was not involved in agricultural production; and
4. The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices. 

The ORC’s chapter on nuisances provides additional protection for those “engaged in agriculture-related activities.”  Under ORC 3767.13, people who are practicing agricultural activities “outside a municipal corporation, in accordance with generally accepted agricultural practices, and in such a manner so as not to have a substantial, adverse effect on public health, safety, or welfare” are typically exempt from claims of nuisance due to farm noise, smells, etc.

Not only is Ohio’s right-to-farm legislation more forceful in its protection of agriculture than many other states, but it also explicitly includes aquaculture under that protection.  AALA gave us the chance to learn about this very interesting study of right-to-farm legislation as applies to aquaculture, which is an area of agriculture that many Ohioans might not necessarily think about.  If you are interested in learning more about state right-to-farm laws and aquaculture, the National Sea Grant Law Center’s report is available here. 

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.

Written by: Evin Bachelor, Law Fellow, and Ellen Essman, Sr. Research Associate

We’re back from the American Agricultural Law Association’s 2018 symposium, which was held in Portland, Oregon this year.  We had the chance to hear from lawyers and experts from across the nation on various legal issues facing agriculture.  Stay tuned to the Ag Law Blog for an update on what we learned at the symposium, but first, here’s the latest in agricultural law news:

Vote to designate watersheds in distress tabled by Ohio Soil and Water Conservation Commission.  As recently reported in the Ag Law Blog, the Ohio Soil and Water Conservation Commission held a meeting this week to discuss whether to designate certain sub-watersheds in the Western Lake Erie Basin as “in distress.”  Such designation would trigger additional management and reporting requirements on farmers in affected watersheds.  The Commission voted 4-3 to table the discussion and wait for the Joint Committee on Agency Rule Review (JCARR) to examine the Ohio Department of Agriculture’s proposed rule changes next month.  This week’s vote maintains the status quo without extending the “in distress” designation to other watersheds.

FDA releases two FSMA draft guidance documents.  The Food and Drug Administration recently released draft guidance documents explaining how to follow rules under the Food Safety Modernization Act (FSMA).  One document, titled “Guide to Minimize Food Safety Hazards of Fresh-cut Produce,” provides guidance on how to follow the Preventive Controls Rule under FSMA.  “Fresh-cut produce,” is defined as “any fresh fruit or vegetable or combination thereof that has been physically altered from its whole state after being harvested from the field without additional processing.”  The guidance would affect manufacturers, processors, packers, and holders of fresh-cut produce.  The document covers current good manufacturing practices, as well as “new requirements for hazard analysis and risk-based preventive controls.”  The draft guidance document, in addition to information on how to submit a comment on the guidance, is available here. 

The second draft guidance document is titled “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: Guidance for Industry.”  This document provides guidance on how to follow FSMA’s Produce Safety Rule.  The guidance would affect produce farms.  The guidance covers personnel qualifications and training, health and hygiene practices, biological soil amendments, contamination from domesticated and wild animals, suggestions for practices during the growing, harvesting, packing, and holding of produce, sanitation of equipment, recordkeeping on produce farms, and other topics.  According to a press release about the two guidance documents, FDA will be holding a series of four public meetings at various places around the U.S. to discuss the second draft guidance document with those affected.  FDA will be announcing the details about the meetings in the Federal Register soon.

It is important to remember that these are draft guidance documents.  Furthermore, guidance documents are just that—guidance.  In other words, the documents are there as suggestions on how to follow rules, and “do not establish legally enforceable responsibilities.”

EPA renews dicamba registration for cotton and soybeans, and updates labels.  On October 31, 2018, the United States Environmental Protection Agency (EPA) shared its decision on changes to applying dicamba, the much discussed herbicide.  EPA renewed the herbicide’s registration until December 20, 2020 for application to growing (what EPA terms “over-the-top”) dicamba-resistant cotton and soybean plants. 

Below is EPA’s list of label alterations to dicamba products for the 2019-2020 growing season:

• Two-year registration (until December 20, 2020)
• Only certified applicators may apply dicamba over the top (those working under the supervision of a certified applicator may no longer make applications) 
• Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting
• For cotton, limit the number of over-the-top applications from 4 to 2 (soybeans remain at 2 OTT applications)
• Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset
• In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
• Clarify training period for 2019 and beyond, ensuring consistency across all three products (Xtendimax with Vapor Grip Technology, Engenia Herbicide, DuPont FeXapan Herbicide)
• Enhanced tank clean out instructions for the entire system
• Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba
• Label clean up and consistency to improve compliance and enforceability

EPA’s press release is available here.  More information on dicamba registration for resistant cotton and soybeans is available here. 

Judge reduces jury verdict against Bayer’s Monsanto.  As we predicted in a previous edition of The Harvest, Bayer’s Monsanto quickly challenged a quarter billion dollar verdict granted by a San Francisco jury to a plaintiff who alleged that Monsanto’s Roundup weed killer caused his cancer.  Monsanto asked the judge to reconsider the jury’s verdict, and on Monday, October 22nd, the judge reduced the punitive damages portion of the jury verdict from $250 million to $39.25 million.  The judge accepted the jury’s finding that Monsanto acted with malice, but said that the evidence did not justify a quarter billion dollar award.  The judge did uphold the $39.25 million compensatory damages verdict.  In total, the plaintiff would receive a $78.5 million award.  Just this week, the plaintiff accepted the reduction in the award, saying that he will not ask the judge to reconsider the decision on damages.  However, the litigation seems likely to continue, so stay tuned to the Ag Law Blog for more updates about the glyphosate and Roundup lawsuits.

Blockchain: the future of information sharing?  We keep hearing about Blockchain technology, but what is it?  Blockchain is a digital system that allows users to securely transfer information and money without an intermediary to facilitate the transfer.  The transfers are recorded and timestamped, and the information contained in the “blocks” cannot be modified without the agreement of a majority of network users.  The system is decentralized in nature, meaning that the information is not stored in one location but is rather is stored on servers across the globe.  This makes the system more secure and less prone to modification because no single user can control the blockchain.  Its early uses were for digital cryptocurrencies like Bitcoin, but its uses have expanded into information.  The system has a potential in almost every sector of the economy, agriculture included.  For example, Walmart announced plans to utilize blockchain to quickly track products like produce all the way from the ground to the consumer.  By tracking information on foods like produce, companies like Walmart hope to be able to quickly determine sources of contamination in its food supply.  This would not only be a way to save lives, but to also not have to waste produce that was not contaminated.  For more information on Blockchain, here is a webinar from the National Agricultural Law Center that goes more in depth on what blockchain is, how it works, and how it can be utilized to help agriculture.

Written by: Evin Bachelor, Law Fellow, and Ellen Essman, Sr. Research Associate

Here's a gathering of recent agricultural law news from OSU's Agricultural & Resource Law Program:

FDA seeks comments, asking “what is milk?”  The Food and Drug Administration recently posted a request for public comment in the Federal Register regarding the labeling of plant-based products that use terms associated with dairy in their names.  The FDA explains that it wants to know how consumers use products like soy milk and whether such labels provide enough clarity to consumers.  The press releases can be viewed here.  The public may submit comments here until November 27th, 2018.

Sixth Circuit says Clean Water Act does not cover discharges into ground water.  The U.S. Court of Appeals for the Sixth Circuit, which includes Ohio, published an opinion on September 24th that seems to limit the extent of the Clean Water Act.  At issue in Tennessee Clean Water Network v. Tennessee Valley Authority was whether the TVA violated the Clean Water Act by dumping coal ash into a pond that was leaking into ground water that eventually would reach the Cumberland River.  The Fourth and Ninth Circuits previously published opinions saying that an underground “hydrological connection” between protected navigable Waters of the United States and unprotected ground water was enough to require a Clean Water Act permit.  In rejecting this approach, the Sixth Circuit creates a split that may send this question to the Supreme Court.  For now, the law in the Sixth Circuit, and therefore Ohio, is that a discharge into an underground water source that has a hydrological connection to a federal navigable water is not a discharge from a point source that triggers Clean Water Act protections.  The Sixth Circuit’s opinion is available online here.

Water Infrastructure Bill Headed to the President’s Desk.  After a bipartisan effort, Congress passed “America’s Water Infrastructure Act of 2018” on Wednesday with a 99-1 vote in the Senate.  The House had approved the bill by a voice vote in mid-September.  If signed by the President, the law would authorize the Army Corps of Engineer to carry out a variety of river and harbor improvements across the country, along with other conservation and water resource development projects.  The bill did not specifically earmark projects for Ohio, but it did authorize a Coastal Resiliency Study for the Great Lakes.  Also included in the bill was a reauthorization for the Safe Drinking Water Act, which authorizes the U.S. EPA to set drinking water standards and work toward reaching those standards.  Visit Congress’s website for the full text of the Senate Bill 3021.

States wait to decide on whether to end joint Ohio River standards.  Currently, the Ohio River Valley Water Sanitation Commission (ORSANCO) sets water quality standards and performs assessments for the Ohio River Basin.  Formed in 1948, ORSANCO includes representatives from Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia, West Virginia, and the federal government.  The members of the commission were set last week to vote on whether to decentralize the setting of water quality standards, and instead have the individual states along the Ohio River set their own standards.  The vote was postponed in order to provide commissioners with more time to consider the proposal.  According to WCPO Cincinnati and Politico, opponents of the proposal say that this could harm water quality by allowing conflicting standards, while proponents argue that the commission’s role is redundant in light of the U.S. EPA’s jurisdiction over the Ohio River and its major tributaries.  Learn more about ORSANCO by visiting their website.

Multi-year and lifetime hunting and fishing licenses become available in Ohio.  As we reported in a Harvest post earlier this year, Governor Kasich signed a bill into law that created multi-year and lifetime hunting and fishing licenses for residents of Ohio, and that allows the Division of Wildlife to offer licensure “packages” for any combination of licenses, permits, or stamps.  The new license categories are codified in Ohio Revised Code section 1533.321.  On Tuesday, October 9, 2018, the Ohio Department of Natural Resources announced that the new multi-year and lifetime hunting and fishing licenses were available for purchase.  The options include 3, 5, 10-year, and lifetime licenses for three age categories—Youth (17 and younger), Adult (18-65), and Senior (66 and older).  More information on hunting and fishing licenses can be found here, including pricing, and where and how licenses can be purchased.

NAFTA 2.0 is now USMCA.  The Office of the U.S. Trade Representative has released the text of the proposed United States-Mexico-Canada Agreement (USMCA), which President Trump intends to use as a replacement for the North American Free Trade Agreement (NAFTA).  NAFTA is currently a federal statute, and replacing it will require an act of Congress.  The U.S. Trade Representative’s webpage contains official summaries and fact sheets regarding the agreement, along with the current text of the agreement.