The Ohio Specialty Crop Registry connects producers of specialty crops, beekeepers, and pesticide applicators to one another through free online registries. Producers of specialty crops and beekeepers may voluntarily report the boundaries of their specialty crops and beehives. The registry then compiles this information in a mapping tool that also provides the contact information of the registrant. In doing so, pesticide applicators are better able to avoid these areas and minimize spray drift.
The Old System: the Ohio Sensitive Crop Registry
The Ohio Department of Agriculture (ODA) first launched a registry for sensitive crops in 2014 so that pesticide applicators could know the locations of sensitive crops before spraying in a given area. The registry came about at a time when widespread demand for organic foods required more farmers to closely monitor what came into contact with their crops. The original tool allowed commercial producers of at least a half-acre of a single type of sensitive crop to register. Sensitive crops included just about any non-row crop such as fruits, vegetables, and herbs. Apiaries, outdoor aquaculture, brambles, certified organic farms, nurseries, greenhouses, and orchards also could be registered.
The New System: the Ohio Specialty Crop Registry
Now, ODA partners with FieldWatch, Inc. to operate the Ohio Specialty Crop Registry. FieldWatch, Inc. is a non-profit organization that operates three registries: DriftWatch for producers of specialty crops, BeeCheck for beekeepers, and CropCheck for producers of row crops. FieldWatch creates maps based on the information from these registries, and makes those maps available to pesticide applicators in another program called FieldCheck. In summary, the three registries are for the producers and beekeepers, and FieldCheck is for the pesticide applicators.
Ohio currently only uses the DriftWatch and BeeCheck registries. According to ODA, the list of sensitive crops under the old program is virtually the same under the new system, meaning that producers of any non-row crop may utilize DriftWatch. While beekeepers may report the location of their beehives in DriftWatch, ODA recommends that beekeepers with no specialty crops use BeeCheck.
FieldWatch, Inc. continues to update its tools to add features and indicators, and CropCheck represents one such development. New for 2019, this registry allows producers of row crops like corn, soybeans, and wheat to register their crops. Its development comes on the heels of the introduction of dicamba-tolerant seeds. Only Arkansas, North Carolina, Illinois, and Indiana have adopted CropCheck for 2019. Ohio has not yet adopted it.
Connecting the Dots between the Registry and Liability
At this point you may be asking yourself, why is this in the ag law blog? That’s a fair question, and the answer is simple: risk management. As more farmers adopt organic practices, as pesticides and seeds change, and as weather patterns evolve, the risk increases that pesticide drift may come into contact with and negatively impact specialty crops and beehives.
The law expects people to act reasonably and to exercise due care at all times, and this default duty applies to pesticide applicators. Common claims for drift include negligence, nuisance, and trespass. Each of these claims examine whether the parties acted reasonably and with due care. Most often, when a court decides that a pesticide applicator acted unreasonably, it is because he or she failed to apply the pesticide in a manner consistent with the label. Following the label is certainly an expectation, but it is not the only thing a court will consider.
When a pesticide applicator does not use FieldCheck, a perceptive attorney representing beekeepers and producers of specialty crops would likely argue that the use of FieldCheck is an industry standard. If an attorney could establish this, then the failure to use FieldCheck would mean that a pesticide applicator failed to act in a reasonable manner and exercise due care. While we have not seen an Ohio court consider this issue yet, as use of the program continues to grow, this argument will come to hold more weight when a case does arise.
When a pesticide applicator does use FieldCheck, he or she has a stronger argument that he or she acted in a reasonable manner. FieldCheck provides pesticide applicators with a way to know exactly where registered sensitive crops and beehives are located, and allows the applicator to buffer accordingly. FieldCheck provides a quick, cheap, and easy way to manage legal risk, alongside following the label. Applicators who use the program may want to document when they used the program and also how the maps impacted their application plan.
These scenarios presume that the beekeeper or producer of specialty crops has registered the locations of their bees or crop with a FieldWatch registry. When sued by a beekeeper or producer of specialty crops who did not register their locations, a pesticide applicator could use similar arguments as noted above in order to defend against the lawsuit. However, the applicator’s focus would likely regard the lack of notice. Again, these arguments alone would not likely determine the outcome of the case, but they would help the court determine whether the parties acted reasonably.
What about hemp?
Another question that some of our readers will also be asking is: which registry is for hemp? We made a call and left a message with FieldWatch. If or when hemp production becomes legal in Ohio, we’ll be sure to provide an update on which registry is proper for hemp. Ohio’s hemp bill is on the move, and the Ohio Senate Agriculture & Natural Resources Committee completed its third hearing of the bill this week. However, we can’t forget that growing hemp is not legal in Ohio unless and until the bill is passed into law and the regulatory system is created.
Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program
Ten of Ohio’s thirty-three state senators have introduced and sponsored legislation that would decriminalize licensed hemp cultivation and production in the state of Ohio. These senators represent a bipartisan mix of seven Republicans and three Democrats. After the passage of the Farm Bill, we sent out a blog post that explained how current Ohio law does not distinguish hemp from marijuana, meaning that hemp is currently just as illegal under Ohio law as marijuana. Senate Bill 57 would change that, if passed.
What Senate Bill 57 would change.
Senate Bill 57, if passed in its current form, would effectively decriminalize hemp cultivation and the production and sale of hemp products, so long as the activities are conducted under a license. The bill establishes definitions for cannabidiol and hemp under Ohio law. Specially, hemp would be defined as:
“the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, sales, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent on a dry weight basis.”
Importantly for hemp cultivators and producers, this bill would remove hemp from Ohio’s Controlled Substances Act. We previously noted in a blog post that Senate Bill 229 from the last General Assembly was set to remove Ohio’s controlled substances schedules from the Ohio Revised Code, and instead would allow the Ohio Board of Pharmacy to create the schedules by rule. That bill passed, and would have allowed sales of CBD oils that had obtained approval from the U.S. Food and Drug Administration. However, if Senate Bill 57 passes the Ohio General Assembly, the Ohio Board of Pharmacy would no longer be able to adopt rules designating hemp and hemp products as controlled substances.
The (potential) Ohio Hemp Cultivation Program.
The Director of the Ohio Department of Agriculture (ODA) would be required to establish a program to monitor and regulate hemp cultivation consistent with the requirements of the Farm Bill that Congress passed last year. The Farm Bill authorizes the cultivation of hemp and the production of hemp products through state licensing programs. Ohio’s program would include a licensing program. Licenses will be valid for five years. ODA and universities would not be required to obtain a license, but their activities would be limited to certain activities listed in the bill. Hemp cultivation would still be illegal without a license, and could result in criminal misdemeanor charges.
The bill authorizes ODA to adopt regulations regarding:
- What the license application looks like
- What information the license application requires
- How much a license costs
- How background check will be conducted, and what they will examine
- How ODA will issue, renew, deny, suspend, and revoke hemp cultivation licenses
- How ODA will keep track of the lands where hemp is grown
- How ODA will test for delta-9 tetrahydrocannabinol concentration
- How hemp products must be labeled
- How ODA will enforce the rules and conduct inspections
- “Any other requirements or procedures necessary to administer and enforce” Ohio’s hemp cultivation program
The bill would deny licenses to any person who has pleaded guilty to or been convicted of a felony relating to controlled substances in the ten years before submitting their application, along with any person found to have falsified information on their application.
To administer the program, the bill would create a Hemp Cultivation Fund in the Ohio Treasury. Application fees, fees collected from program operations, money appropriated to the program by the General Assembly or ODA, and any gifts or grants may be deposited into the fund for use in program administration.
At this time, the bill has only been introduced and referred to the Ohio Senate Agriculture Committee. Bills are often subject to amendment, so stay tuned to the Ag Law Blog for updates on Senate Bill 57. For the text of the bill, click HERE, or visit the Ohio General Assembly’s Senate Bill 57 webpage HERE.
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:
- A way to keep track of land where hemp is produced within the state;
- Methods the state will use to test how much THC is in hemp plants;
- A way to dispose of plants or products that have a higher THC concentration than is legally allowed;
- A procedure for inspecting hemp producers;
- A plan for enforcing the law;
- A system for dissemination of a hemp producer’s information to the USDA; and
- 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!
The legislative Joint Committee on Agency Rule Review (JCARR) has voted to send the "watersheds in distress" rule revisions back to the Ohio Department of Agriculture (ODA). JCARR reviews administrative rules to make sure they follow legal requirements, which we explained in a previous blog post. The "watersheds in distress" rules seek to address agricultural nutrient impacts on water quality, also explained in an earlier post. At its meeting yesterday, JCARR members voted 8 to 1 to recommend that ODA revise and refile the rules for consideration at JCARR's next meeting on January 22, 2019.
The January 22 meeting date efectively removes Governor Kasich's administration from the rules revision. Kasich issued an executive order last July directing his agencies to prepare the controversial rule package. But the incoming DeWine Administration will control the fate of the rules since DeWine takes office on January 14, 2019. JCARR is apparently counting on the new administration to take a different approach on agricultural nutrient pollution reduction.
"There will be a new administration and we'll have maybe more productive talks," stated JCARR's chair, Sen. Joe Uecker (R-Loveland). "The DeWine Administration has demonstrated an interest on working with stakeholders on this issue."
The lack of stakeholder involvement was a common concern voiced by JCARR members, who stated that the rules had been rushed and did not involve all of the interested parties. Several committee members also suggested that the rules are inconsistent with legislative intent and will have a significant adverse impact on farmers. The Ohio Soybean Association, Ohio Corn & Wheat Growers Association, and Ohio Farm Bureau echoed those criticisms to JCARR members while several local residents, local groups and the Ohio Environmental Council testified that the rules would not sufficiently protect water quality.
If ODA fails to refile the rules proposal for the January meeting, JCARR will have 31 days to recomend that the Ohio General Assembly invalidate the rules. That action would allow each chamber five days to pass a resolution invalidating the rules; if the concurrent resolution does not pass within that time period, the rules would stand. Alternatively, ODA could remove the proposal from JCARR's agenda and refile revised rules at a later date, a likely course of action for the incoming DeWine administration.
Those post cards advising producers of a $1.51 billion settlement in the Syngenta corn seed lawsuits are legitimate, and corn producers seeking compensation from thesettlement must file claims by 11:59 p.m. on October 12, 2018. The settlement is the result of class action and individual lawsuits alleging that Syngenta failed to receive import approval from China before selling its genetically modified Viptera and Duracade seeds in the United States, which led to the rejection of U.S. corn shipments and a lowering of corn prices from 2013 to 2018.
Who can file a claim?
Three types of claimants that were involved in the U.S. corn market between September 15, 2013 and April 10, 2018 may file claims:
- Corn producers, which includes any owner, operator, landlord or tenant who shared in the risk of producing any variety of corn, not just Syngenta varieties. Landlords who operated under fixed cash leases are not eligible.
- Grain handling facilities that purchased, transported, stored, handled and sold any variety of corn.
- Ethanol production facilities that produced, purchased and sold dried distillers' grains from any variety of corn.
How to file a claim?
File electronically through a secure, encrypted portal at www.CornSeedSettlement.com or download a printed form on the same website to file via U.S. mail. Claimants must file using either a federal tax ID number or social security number and must file a separate claim for each Form 578 filed with FSA. Note that the settlement claims administrator states that all claims information is confidential and will be destroyed after the payment of claims.
How much will a claimant receive?
Payments will vary and will depend upon the total number of filed claims. For corn producers, the claims administrator will determine payments based on the following factors: (1) compensable recovery quantity as calculated by number of acres, ownership interest, NASS county yields and predetermined marketing year averages, (2) the year of planting, (3) the producer’s ownership interest, and (4) whether the producer purchased and planted Agrisure Viptera or Duracade seed or a different variety.
When will claimants receive payments?
A claimant might not receive a payment for about a year. A court hearing to approve the settlement will take place in the U.S District Court in Kansas on November 15, 2018. If the court approves the settlement, those who object to the approval can file appeals. Final payments won't occur until the court resolves all appeals, which could take about a year or more.
Must claimants report payments as income?
Class action settlement payments that compensate for the loss of business income should be reported for tax purposes. Claimants should consult with tax advisors to determine IRS reporting requirements.
For more information, an extensive list of frequently asked questions about the Syngenta corn seed settlement is available here.
Written by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program
We often receive questions about the status of industrial hemp as an agricultural crop in Ohio. Historically, growing industrial hemp has been controversial in the United States because of its close relationship to the marijuana plant—both are members of the same species. Plants used for industrial hemp, however, have a much lower amount of tetrahydrocannabinol (THC) than marijuana and do not have the intoxicating qualities of marijuana plants. Uses for industrial hemp are numerous; ranging from fabrics, to car parts, to bedding for animals. Because of potential usefulness, Congress authorized the growing of industrial hemp in individual states for “purposes of research” in the 2014 Farm Bill.
The 2014 Farm Bill and industrial hemp
The 2014 Farm Bill included a section codified at 7 U.S.C. § 5940 that allows industrial hemp to be grown under certain circumstances. Specifically, industrial hemp can be grown in a state if:
- It is grown for research purposes;
- The research is conducted under an agricultural pilot program or other agricultural or academic research; and
- State law permits the growth of industrial hemp.
The federal law only permits hemp to be grown, cultivated, studied, and marketed under the guidance of institutions of higher education located in the state or the state department of agriculture. Furthermore, the state must certify and register the sites permitted to grow industrial hemp because any substance containing THC is a Schedule I controlled substance under 21 U.S.C. § 812 (c). This means that without a license issued by a state that allows industrial hemp to be grown for research, someone in possession of the plant would be violating federal drug law.
It is also important to note that under the federal law, “industrial hemp” is defined as the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a THC concentration of not more than 0.3 percent on a dry weight basis. Any concentration over that amount is not legal. Even those plants with a THC concentration less than or equal to 0.3 percent are illegal unless the grower has a state license.
State action on industrial hemp research
Since the passage of the 2014 Farm Bill, 26 states have implemented legislation allowing industrial hemp research or pilot programs. Ohio is not one of these states, but all of the states bordering Ohio have passed laws allowing industrial hemp research. The National Conference of State Legislatures provides a compilation of the state laws here.
Kentucky is an example of a state that is carrying out an industrial hemp pilot program. The program, codified in the Kentucky Revised Statutes §§ 260.850-260.869, allows universities, the state department of agriculture, and those who hold a license from the department of agriculture “to study methods of cultivating, processing, or marketing industrial hemp.” In order to obtain a license, a person must give the Kentucky Department of Agriculture both the legal description and the GPS coordinates of the area where they will grow industrial hemp. Furthermore, applicants for licenses must agree in writing to allow the State to enter the premises for inspection, and receive a yearly background check. Any convicted felon or person with a “drug-related misdemeanor” is barred from becoming licensed.
By implementing this industrial hemp program under state law, Kentucky has stated that it intends to be at the “forefront” of the industry. The state hopes to be in a position to profit from industrial hemp if and when the federal government removes the restrictions on growing and selling industrial hemp. Information from the Kentucky Department of Agriculture is here and here.
Will the U.S. soon allow hemp to be legally grown as a crop? A bill introduced in the U.S. House of Representatives last July, H.R. 3530, calls for industrial hemp to be removed from the federal definition of marijuana, which would in turn remove it from the list of illegal controlled substances. A quick search on Congress’ website reveals that similar bills have been introduced many times in the past but have not garnered sufficient support. The possibility that the current proposal will gain enough traction to pass is therefore slim. But it is possible that continued research could prove the value of industrial hemp as an agricultural crop, which could eventually lead to less regulation in the future. Given Ohio’s lack of legislative interest in allowing industrial hemp research, Ohio farmers may be at a disadvantage if that day arrives.
For more information
Our colleague Harrison Pittman, Director of the National Agricultural Law Center, presented a webinar on industrial hemp and it's recorded here. A Congressional Research Service report on "Hemp as an Agricultural Commodity" is available here. A recent article on hemp by Farm and Dairy is available here.
Last week, the Environmental Protection Agency (EPA) announced an agreement with Monsanto, BASF and DuPont to change dicamba registration and labeling beginning with the 2018 growing season. EPA reports that the agreement was a voluntary measure taken by the manufacturers to minimize the potential of dicamba drift from “over the top” applications on genetically engineered soybeans and cotton, a recurring problem that has led to a host of regulatory and litigation issues across the Midwest and South. The upcoming changes might alleviate dicamba drift issues, but they also raise new concerns for farmers who will have more responsibility for dicamba applications.
The following registration and labeling changes for dicamba use on GE soybeans and cotton will occur in 2018 as a result of the agreement:
- Dicamba products will be classified as “restricted use” products for over the top applications. Only those who are certified through the state pesticide certification program or operating under the supervision of a certified applicator may apply the product. Training for pesticide certification will now include information specific to dicamba use and application, and applicators will be required to maintain records on the use of dicamba products.
- The maximum wind speed for applications will reduce from 15 mph to 10 mph.
- There will also be greater restrictions on the times during the day when applications can occur, but details are not yet available on those restrictions.
- Tank clean-out instructions for the prevention of cross contamination will be on the label.
- The label will also include language that will heighten the awareness of application risk to sensitive crops.
Farmers should note that the additional restrictions and information on dicamba labels shifts more responsibility for the product onto the applicator. An applicator must take special care to follow the additional label instructions, as going “off label” subjects an applicator to higher risk. If drift occurs because of the failure to follow the label, the applicator is likely to be liable to the injured party for resulting harm and may also face civil penalties. Producers should take care to assess the new dicamba labels closely when the manufacturers issue the revised labels for 2018.
To learn more about legal issues with pesticide use, be sure to sit in on the Agricultural & Food Law Consortium’s upcoming webinar, “From Farm Fields to the Courthouse: Legal Issues Surrounding Pesticide Use.” The webinar will take place on Wednesday, November 1 at Noon EST and will feature an examination of regulatory issues and litigation surrounding pesticide use around the country by attorneys Rusty Rumley and Tiffany Dowell Lashmet. To view the free webinar, visit http://nationalaglawcenter.org/consortium/webinars/pesticide/
Noxious weed law questions are common in the midst of the growing season and this year is no different. Below is a sampling of frequently asked questions we've received about noxious weed law. Learn more about the laws in our new law bulletin, Ohio's Noxious Weed Laws, available here.
My neighbor doesn’t keep his fence row clear of noxious weeds. What can I do about it?
First, talk to the neighbor. If your neighbor doesn’t respond favorably, the second step is to provide a written notice to the neighbor stating that he has ten days to clear the fence row of the noxious weeds. Third, if the neighbor still doesn’t take action, provide a written notice of the situation to the township trustees, which will initiate a process that could result in the trustees determining that there is a valid need to clear the fence row and hiring some to do the work. Your neighbor will be legally obligated to pay for the costs on his property tax bill.
I’ve been notified by my township trustees that I have noxious weeds on my property. What should I do?
Be aware that you must respond within five days of the date the trustees notified you about the weeds or the trustees will have the authority to destroy. Your options are to destroy or cut the weeds or to provide information to the township trustees showing that there is no need to take action. For example, such information might include showing that noxious weeds don’t exist on the property or showing that plants were incorrectly identified as noxious weeds.
Do I have to destroy my crop if noxious weeds are on my land?
No, Ohio law states that you must only “cut or destroy the weeds” if you have been notified by the township trustees that noxious weeds are on your property.
Noxious weeds are growing in the road right-of-way. Can I remove them myself and charge the township for my costs?
You may remove the noxious weeds, but you will probably not receive reimbursement for your costs unless the township trustees violated their duty to cut the weeds even after you followed the proper legal process for demanding their action. Ohio law requires the township trustees to cut road right-of-way weeds in early June and August, in early September if necessary, and at other times if public safety is at issue. If they fail to do so, you should formally complain to the township trustees in writing or by speaking at a township meeting. If the trustees still fail to take action, the next step is to file a “writ of mandamus” action that asks the court to order the clearing. Seeking reimbursement for your work prior to following this legal process is not the proper method for enforcing the township’s duty, according to the Second District Court of Appeals in Mezger v. Horton, 2013 Ohio 2964.
How do I know which weeds are “noxious”?
The director of the Ohio Department of Agriculture conducts rulemaking to designate a plant as a prohibited noxious weed. The list of plants that the director has formally designated as noxious weeds is in the Ohio Administrative Code and is available at http://codes.ohio.gov/oac/901:5-37-01.
Congress has enacted legislation to address security threats to the country’s food and agricultural systems. The “Securing our Agriculture and Food Act” enrolled on June 22, 2017, authorizes the government to coordinate efforts to defend U.S. food, agriculture, and veterinary systems against terrorism and other high-consequence events to create risks to homeland security. The bill has been forwarded to President Trump for approval.
The bi-partisan bill, sponsored by Rep. Young (R-Iowa) with co-sponsors Rep. Payne (D-NJ) and Rep. Donovan (R-NY), amends the Homeland Security Act of 2002. House Bill 1238 requires the Assistant Secretary for Health Affairs in the Department of Homeland Security (DHS) to coordinate an agriculture and food security program with federal departments and agencies that includes:
- Managing DHS responsibilities established by President George W. Bush in his 2004 Presidential Directive 9, which created a national policy for defending food and agricultural systems against terrorist attacks, major disasters, and other emergencies.
- Overseeing and integrating DHS activities related to veterinary public health, food dense, and agricultural security.
- Leading policy initiatives relating to domestic preparedness for and response to agricultural terrorism.
- Coordinating activities on food and agriculture security and screening procedures for domestic and imported products with other departments, including U.S. Customs and Border Protection.
Rep. Young drafted the bill following Iowa’s 2015 avian influenza outbreak, which resulted in the loss of millions of chickens and turkeys in his home state. According to Rep. Young, the event raised concerns about the federal government’s ability to quickly react to animal disease outbreaks and whether the nation would be able to respond capably to agro-terrorism threats.
“We don’t always think of a terrorist attack as a deliberate, mass food contamination, or the danger a major disease outbreak could pose,” stated Sen. McCaskill (D-MO), when the bill was introduced in the Senate Agriculture Committee. “Congress needs to think forward about the wide array of threats we face and take action before there’s a tragedy, not afterwards.”
The “Securing our Agriculture and Food Act,” H.B. 1238, is available here.
Farmers are receiving a lot of attention from law firms these days, from video mailers to offers of free consultations, dinners, hats and more. The purpose of these marketing efforts is to entice farmers away from participating in the current class action lawsuit against Syngenta. Law firms want farmers to exclude themselves from the class action litigation and participate in individual lawsuits their firms would bring against Syngenta. With a deadline of April 1 looming, farmers must decide whether to remain in or step away from the class action lawsuit.
The class action lawsuit, known as “In re Syngenta AG MIR162 Corn Litigation,” is pending before the U.S. District Court in Kansas. It is one of two major lawsuits regarding corn rejected by China in 2013 because China had not yet approved Syngenta’s Duracade and Viptera brands of genetically-modified corn. The lawsuit consolidated hundreds of similar federal court cases that all claimed that Syngenta should be liable for the drop in corn prices that followed China’s rejections because Syngenta stated that it had obtained all necessary regulatory approvals for Duracade and Viptera, but instead released the seed before receiving China’s approval.
Last September, the court certified the litigation as a class action lawsuit, which allows the case to commence on behalf of all class members. Any farmer that fits within the class definitions is automatically included in the lawsuit and does not have to pursue individual litigation against Syngenta. The court established a nationwide class of “producers,” defined as any person or entity listed as a producer on an FSA-578 form filed with the USDA who priced corn for sale after November 18, 2013 and who did not purchase Viptera or Duracade corn seed (farmers who used Syngenta’s seed have different legal claims). The nationwide class is for producers bringing claims under federal law. The court also certified eight state classes for producers bringing claims under state laws, including Ohio. Syngenta appealed the class certification, but the Tenth District Court of Appeals denied the appeal.
Ohio farmers who fit the definition of “producers” are now automatically members of both the nationwide and Ohio classes. This means that every Ohio producer can receive a share of any award or settlement that results from the litigation, with required documentation. However, Ohio producers may choose to exclude themselves from or “opt out” of their classes and bring their own individual actions against Syngenta. The district court required attorneys for the class action suit to notify all potential producers of the lawsuit and of a producer’s right to be excluded from the litigation. A producer must send an exclusion request by April 1, 2017, following the process for exclusion stated in the court’s order, available here.
Pros and Cons of Staying in the Class
A major benefit of remaining in the class action lawsuit is convenience. Class members in the lawsuit have no responsibility for the proceedings, which falls upon the attorneys who represent the entire class. However, convenience comes at the cost of deferring decision making authority and losing a share of the award or settlement to court-ordered attorney fees, although class members may file objections to such decisions. Exclusion from the class gives producers freedom to pursue their own actions, which will likely lead to a stronger role in decision making and the ability to negotiate attorney fees. Exclusion also allows a farmer who may not agree with the litigation on principal to dissociate from the lawsuit.
The court has scheduled “bellwether” cases in the lawsuit, which will go to trial in June. Bellwether cases are chosen to be representative of the class. Allowing these cases to go to trial gives an indication of how the litigation will play out—the strength of each side, how juries react and how the law applies to the situation. Upon completion of the bellwether cases, both sides should be better able to decide whether to settle the lawsuit or continue with litigation.
The U.S. District Court’s website for the Syngenta class action lawsuit is http://www.ksd.uscourts.gov/syngenta-ag-mir162-corn-litigation/