Hemp, drones, meat labeling and more—there is so much going on in the world of ag law! With so much happening, we thought we’d treat you to another round of the Harvest before the holidays.
Hemp for the holidays. As 2020 and the first growing season approach, there has been a flurry of activity surrounding hemp. States have been amending their rules and submitting them to the USDA for approval in anticipation of next year. In addition, just last week USDA extended the deadline to comment on the interim final hemp rule from December 30, 2019 to January 29, 2020. If you would like to submit a comment, you can do so here. To get a refresher on the interim rule, see our blog post here.
In other hemp news, EPA announced approval of 10 pesticides for use on industrial hemp. You can find the list here. Additional pesticides may be added to the list in the future.
Congress considers a potential food safety fix. It’s likely that over the last several years, you’ve heard about numerous recalls on leafy greens due to foodborne illnesses. It has been hypothesized that some of these outbreaks could potentially be the result of produce farms using water located near CAFOs to irrigate their crops. A bill entitled the “Expanded Food Safety Investigation Act of 2019” has been introduced to tackle this and other potential food safety problems. If passed, the bill would give FDA the authority to conduct microbial sampling at CAFOs as part of a foodborne illness investigation. The bill is currently being considered in the Senate Health, Education, Labor, and Pensions Committee.
Animal welfare bill becomes federal law. In November, the President signed the “Preventing Animal Cruelty and Torture Act” (PACT), into law. PACT makes it a federal offense to purposely crush, burn, drown, suffocate, impale, or otherwise subject non-human mammals, birds, reptiles, or amphibians to serious bodily injury. PACT also outlaws creating and distributing video of such animal torture. The law includes several exceptions, including during customary and normal veterinary, agricultural husbandry, and other animal management practices, as well as during slaughter, hunting, fishing, euthanasia, etc.
No meat labeling law in Arkansas? Last winter, Arkansas passed a law that made it illegal to “misbrand or misrepresent an agricultural product that is edible by humans.” Specifically, it made it illegal to represent a product as meat, beef, pork, etc. if the product is not derived from an animal. Unsurprisingly, the law did not sit well with companies in the business of making and selling meat substitutes from plants and cells. In July, The Tofurky Company sued the state in the U.S. District Court for the Eastern District of Arkansas, Central Division, claiming the labeling law violates the First and Fourteenth Amendments, as well as the dormant Commerce Clause. On December 11, the District Court enjoined, or stopped Arkansas from enforcing, the labeling law. This means that the state will not be able to carry out the law while the District Court considers the constitutionality of the law. We will be following the ultimate outcome of this lawsuit closely.
Ag wants to be part of the drone conversation. The Senate Committee on Commerce, Science, and Transportation is currently considering a bill called the “Drone Advisory Committee for the 21st Century Act.” If passed, the bill would ensure that the Federal Aviation Administration (FAA) includes representatives from agriculture, forestry, and rangeland, in addition to representatives from state, county, city, and Tribal governments on the Drone Advisory Committee (DAC). Thus, such representatives would be part of the conversation when the DAC advises the FAA on drone policies.
Ag financing tools may get an upgrade. The “Modernizing Agriculture and Manufacturing Bonds Act,” or MAMBA (what a great name) was introduced very recently in the House Committee on Ways and Means. Text of the bill is not yet available, but when it is, it should be located here. According to this fact sheet, the bill would make a number of changes to current law, including increasing “the limitation on small issue bond proceeds for first-time farmers” to $552,500, repealing “the separate dollar limitation on the use of bond proceeds for depreciable property” which would mean famers could use the full amount for equipment, breeding livestock, and other capital assets, and modifying the definition of “substantial farmland” to make it easier for beginning farmers to gain access to capital.
Shoring up national defense of agriculture and food is on the docket. The Committee on Agriculture, Nutrition, and Forestry sent the National Bio and Agro-Defense Facility Act of 2019 (NBAF) to the floor of the Senate for consideration. Among other things, bill would allow the USDA, through the National Bio and Agro-Defense Facility, to address threats from human pathogens, zoonotic disease agents, emerging foreign animal diseases, and animal transboundary diseases, and to develop countermeasures to such diseases. Essentially, USDA and NBAF would see to national security in the arena of agriculture and food.
We hope you have a wonderful holiday season! We will be sure to continue the ag law updates in the next decade!
Written by Ellen Essman and Peggy Hall
The holidays are almost here, 2019 is almost over, but the world of ag law isn’t taking a break. From cannabidiol, to Ohio bills on water quality and wind power, to a cage-free egg law in Michigan, here’s the latest roundup of agricultural law news you may want to know:
FDA warns companies about cannabidiol products. If you’ve been following the hemp saga unfold over the past year, you know that the Food and Drug Administration (FDA) has been contemplating what to do with cannabidiol, or CBD from derived hemp products. In addition to manufacturing standards, FDA has also considered how CBD products are marketed and labeled. Although FDA has issued no official rules on CBD marketing and labeling, the agency has warned a number of companies that their marketing of CBD violates the Federal Food, Drug, and Cosmetic Act (FD&C Act). On November 25, FDA sent warning letters to 15 companies. FDA asserts that the companies “are using product webpages, online stores and social media to market CBD products in interstate commerce in ways that violate the FD&C Act.” In particular, FDA is apprehensive about those companies who market CBD products in ways that claim they can treat diseases or be used therapeutically for humans and animals. Since CBD has not been approved by FDA or found safe for these uses, companies cannot make such claims. You can see FDA’s news release for more information and for the list of companies.
It won’t be as difficult for financial institutions to serve hemp related businesses. Federal agencies and state bank regulators released a statement clarifying what is required of banks when hemp businesses are customers. Since hemp was removed from the federal list of controlled substances, banks no longer have to file a Suspicious Activity Report on every customer involved in growth or cultivation of hemp just because they grow hemp. This action will make it easier for those legally cultivating hemp to work with banks and obtain loans for their farms. For more information, the agencies’ press release is available here.
Ohio House considers the Senate’s water quality bill. Ohio’s House Energy & Natural Resources Committee held a hearing on Senate Bill 2 just last week. The bill would implement a Statewide Watershed and Planning Program through the Ohio Department of Agriculture (ODA). Under the bill, ODA would be charged with categorizing watersheds in Ohio and appointing coordinators for each of the watersheds. ODA and the coordinators would work closely with soil and water conservation districts to manage watersheds. Ag groups such as the Sheep Improvement Association, the Cattleman’s Association, the Pork Council, the Dairy Producers Association, and the Poultry Association testified in favor of SB 2.
Ohio House committee debates wind bill. The House Energy & Natural Resources Committee was busy last week—in addition to SB 2, they also discussed House Bill 401. In the simplest terms, if passed, HB 401 would allow townships to hold a referendum on approved wind projects. This means that with a vote, townships could overturn decisions made by the Ohio Power and Siting Board (OPSB). In the committee hearing, wind industry representatives argued that such a referendum would be harmful, since it would overturn OPSB decisions after companies have already spent a great deal of money to be approved by the Board. They also argued that the bill singles out the wind industry and does not allow referendums on other energy projects. Republican committee members signaled that they may be willing to revise the language of HB 401 to allow a referendum before OPSB decisions.
Iowa’s ag-gag law is paused. In May, we wrote about Iowa’s new ag-gag law, which was the state’s second attempt to ban undercover whistleblowers and journalists from secretly filming or recording at livestock production facilities. In response, numerous animal rights groups sued the state, claiming that the law unconstitutionally prevents their speech based on content and viewpoint. On December 2, the U.S. District Court for the Southern District of Iowa issued a preliminary injunction, which means that the state will not be able to enforce the ag-gag law while the lawsuit against it is being considered. The preliminary injunction can be found here.
Cage free eggs coming to Michigan in 2024. Michigan lawmakers recently passed Senate Bill 174, which, among other things, will require that all birds producing eggs both in and out of the state be housed in “cage-free” facilities by 2024. The cage-free facilities will have to allow hens to roam unrestricted with the exception of exterior walls, and some types of fencing to contain the birds. In an indoor facility, the farmer must be able to stand in the hens’ usable floor space while caring for them. In addition, the facilities must have enrichments for hens such as scratch areas, perches, nest boxes, and dust bathing areas. Michigan joins California, Oregon, Rhode Island, and Washington in banning non-cage-free eggs. Note that Michigan’s law will apply to Ohio egg producers who sell eggs to buyers in Michigan.
Case watch: hearing set in Lake Erie Bill of Rights case. The court has set a January 28, 2020 hearing date for the slow moving federal lawsuit challenging the Lake Erie Bill of Rights (LEBOR) enacted by Toledo voters in February. The hearing will likely focus on several motions to dismiss the case filed by the parties on both sides of the controversy, but Judge Zouhary indicated that he’ll set the agenda for the hearing prior to its date. Drewes Farm Partnership filed the federal lawsuit against the City of Toledo in February, claiming that LEBOR is unconstitutional and violates several Ohio laws. The State of Ohio was permitted to join the farm as plaintiffs in the case, but the court denied motions by Toledoans for Safe Water and the Lake Erie Ecosystem to join as defendants in the case. For more on the LEBOR lawsuit, refer to this post and this post. For our explanation of LEBOR, see this bulletin.
Stay tuned to the Ohio Ag Law Blog as we continue to track these and other developments in agricultural law through the holidays and beyond.
Food is likely on the minds of many people as we head into the holiday season. Being an agricultural attorney, it’s hard to think about food without also worrying about food product liability. Whether growing turkey or romaine lettuce, producing food for human consumption is a risk-laden endeavor that can lead to legal liability for a farmer. That’s why knowing and following Good Agricultural Practices (GAPs) is imperative for farmers who raise produce, eggs, meats, and other foods for direct human consumption. Employing those production practices is critical to producing a safe food product. But what if a food isn’t safe and causes illness or death?
No one wants to believe their food product would harm someone or that their customers would sue them for such harm. But it’s a reality that food producers must face. I’ve recently had the pleasure of working with farmers in OSU’s Urban Master Farmers Program and OEFFA’s Begin Farming Program who are taking these risks to heart and learning not only about GAPs, but also about other tools that address food product liability risk. Teaching these producers has reminded me of how important it is to remind all producers about these tools. So here’s a rundown on four important food product liability tools:
- Management practices. In addition to using production practices such as GAPs, a producer’s management practices can also manage food liability risk. Thorough employee training, for instance, ensures that everyone is following GAPs and other risk management procedures. Documentation of production procedures can be useful evidence when determining liability for a food product. Keeping records of such documentation along with other records such as sales and training records can help inform what caused the incident and whether it can be traced to a producer’s product. Regulatory compliance, such as following Ohio’s Uniform Food Safety Code, might also be necessary, depending upon the food product. Each of these management practices feed into a solid risk management plan. This requires a producer to engage in continuing education.
- Insurance. An insurance policy can be an excellent way to manage food safety liability risk. But to obtain adequate insurance coverage, a producer should review all food products and food sales activities with an insurance professional. A farm’s standard liability policy might offer adequate coverage for the foods and food sales activities. Alternatively, a producer may need to add an endorsement or “rider” or obtain a separate commercial food product liability policy. The goal is to ensure coverage for medical and related costs if someone contracts a food borne illness from a particular food product sold in a particular way. It’s also important to revisit the insurance coverage when taking on a new activity or creating a new food product. Doing so will ensure maximum protection and reduce the possibility that an incident is not covered.
- Recall insurance and planning. A producer who sells a sizeable quantity of food products through a number of sources or a food broker may need to consider recall insurance. This type of policy will kick in when a food product must be recalled because it has been identified as a food safety risk. It can help cover the costs of notifying the public about the product and removing the product from stores, institutions and consumers. Likewise, having a detailed recall plan can minimize such costs by ensuring that the recall process is responsive, efficient and effective.
- Business entity formation. “Do I need an LLC?” is a common question we receive, and the answer is usually “it depends.” Organizing as a Limited Liability Company (LLC) or Corporation won’t prevent a producer’s liability, but it can limit the liability to the assets of the business. An LLC, for example, contains a producer’s business assets and separates them from the producer’s personal assets, such as a home. If there is a legal liability incident, the LLC assets would be subject to that liability. It would be difficult for someone to get beyond the LLC and into the producer's personal assets. The LLC doesn't relieve the producer from liability, but it can safeguard those personal assets.
Talking about legal liability has a way of ruining one’s appetite, but hopefully that won’t stop food producers from thinking seriously about food product liability risk. The good news is that like most liability exposure areas, tools can help minimize liability risks for our food producers. Using those tools might just help settle our worries about food product liability.
We haven’t done a legislative update in a while—so what’s been going on in the Ohio General Assembly? Without further ado, here is an update on some notable ag-related bills that have recently passed one of the houses, been discussed in committee, or been introduced.
- House Bill 7, “Create water quality protection and preservation”
This bill passed the House in June, but the Senate Finance Committee had a hearing on it just last month. HB 7 would create both the H2Ohio Trust Fund and the H2Ohio Advisory Council. To explain these entities in the simplest terms, the H2Ohio Advisory Council would decide how to spend the money in the H2Ohio Trust Fund. The money could be used for grants, loans, and remediation projects to address water quality priorities in the state, to fund research concerning water quality, to encourage cooperation in addressing water quality problems among various groups, and for priorities identified by the Ohio Lake Erie commission. The Council would be made up of the following: the directors of the Ohio Department of Agriculture (ODA), the Ohio Environmental Protection Agency (OEPA), and the Ohio Department of Natural Resources (ODNR) the executive director of the Ohio Lake Erie commission, one state senator from each party appointed by the President of the Senate, one state representative from each party appointed by the Speaker of the House, and appointees from the Governor to represent counties, municipal corporations, public health, business or tourism, agriculture, statewide environmental advocacy organizations, and institutions of higher education. Under HB 7, the ODA, OEPA, and ODNR would have to submit an annual plan to be accepted or rejected by the Council, which would detail how the agencies planned to use their money from the Fund. You can find the bill in its current form here.
- House Bill 24, “Revise Humane Society law”
HB 24 passed the House unanimously on October 30, and has since been referred to the Senate Committee on Agriculture & Natural Resources. The bill would revise procedures for humane society operations and require humane society agents to successfully complete training in order to serve. Importantly, HB 24 would allow law enforcement officers to seize and impound any animal the officer has probable cause to believe is the subject of an animal cruelty offense. Currently, the ability to seize and impound only applies to companion animals such as dogs and cats. You can read HB 24 here.
- House Bill 160, “Revise alcoholic ice cream law”
Since our last legislative update, HB 160 has passed the House and is currently in Agriculture & Natural Resources Committee in the Senate. At present, those wishing to sell ice cream containing alcohol must in Ohio obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol. This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers who are authorized to sell alcohol. To read the bill, click here.
- House Bill 168, “Establish affirmative defense-certain hazardous substance release”
This bill was passed in the House back in May, but there have been several committee hearings on it this fall. HB 168 would provide a bona fide prospective purchaser of a facility that was contaminated with hazardous substances before the purchase with immunity from liability to the state in a civil action. In other words, the bona fide prospective purchaser would not have the responsibility of paying the state of Ohio for their investigations and remediation of the facility. In order to claim this immunity, the purchaser would have to show that they fall under the definition of a bona fide prospective purchaser, that the state’s cause of action rests upon the person’s status as an owner or operator of the facility, and that the person does not impede a response action or natural resource restoration at the facility. You can find the bill and related information here.
- House Bill 183, “Allow tax credits to assist beginning farmers”
House Bill 183 was discussed in the House Agriculture & Rural Development Committee on November 12. This bill would authorize a nonrefundable income tax credit for beginning farmers who attend a financial management program. Another nonrefundable tax credit would be available for individuals or businesses that sell or rent farmland, livestock, buildings, or equipment to beginning farmers. ODA would be in charge of certifying individuals as “beginning farmers” and approving eligible financial management programs. HB 183 is available here. A companion bill (SB 159) has been introduced in the Senate and referred to the Ways & Means Committee, but no committee hearings have taken place.
- House Bill 373, “Eliminate apprentice/special auctioneer licenses/other changes”
HB 373 was introduced on October 22, and the House Agriculture & Rural Development Committee held a hearing on it on November 12. This bill would make numerous changes to laws applicable to auctioneers. For instance, it would eliminate the requirement that a person must serve as an apprentice auctioneer prior to becoming an auctioneer; instead, it would require applicants for an auctioneers’ license to pass a course. The bill would also require licensed auctioneers to complete eight continuing education hours prior to renewing their license. HB 373 would give ODA the authority to regulate online auctions conducted by a human licensed auctioneer, and would require people auctioning real or personal property on the internet to be licensed as an auctioneer. To read the bill in its entirety and see all the changes it would make, click here.
- Senate Bill 2, “Create watershed planning structure”
Since our last legislative post, SB 2 has passed the Senate and is now in the House Energy and Natural Resources Committee. If passed, this bill would do four main things. First, it would create the Statewide Watershed Planning and Management Program, which would be tasked with improving and protecting the watersheds in the state, and would be administered by the ODA director. Under this program, the director of ODA would have to categorize watersheds in Ohio and appoint watershed planning and management coordinators in each watershed region. The coordinators would work with soil and water conservation districts to identify water quality impairment, and to gather information on conservation practices. Second, the bill states the General Assembly’s intent to work with agricultural, conservation, and environmental organizations and universities to create a certification program for farmers, where the farmers would use practices meant to minimize negative water quality impacts. Third, SB 2 charges ODA, with help from the Lake Erie Commission and the Ohio Soil and Water Conservation Commission, to start a watershed pilot program that would help farmers, agricultural retailers, and soil and water conservation districts in reducing phosphorus. Finally, the bill would allow regional water and sewer districts to make loans and grants and to enter into cooperative agreements with any person or corporation, and would allow districts to offer discounted rentals or charges to people with low or moderate incomes, as well as to people who qualify for the homestead exemption. The text of SB 2 is available here.
- Senate Bill 234, “Regards regulation of wind farms and wind turbine setbacks”
Senate Bill 234 was just introduced on November 6, 2019. The bill would give voters in the unincorporated areas of townships the power to have a referendum vote on certificates or amendments to economically significant and large wind farms issued by the Ohio Power and Siting Board. The voters could approve or reject the certificate for a new wind farm or an amendment to an existing certificate by majority vote. The bill would also change minimum setback distances for wind farms might be measured. SB 234 is available here. A companion bill was also recently introduced in the House. HB 401 can be found here.
Written by: Ellen Essman and Peggy Hall
October is almost over, and while farmers have thankfully been busy with harvest, we’ve been busy harvesting the world of ag law. From meat labeling to RFS rules to backyard chickens and H-2A labor certification, here’s our latest gathering of agricultural law news you may want to know:
Federal judge upholds Missouri’s meat labeling law—for now. Missouri passed a law in 2018, which among other things, prohibited representing a product as “meat” if it is not derived from livestock or poultry. As you can imagine, with the recent popularity of plant-based meat products, this law is controversial, and eventually led to a lawsuit. However, U.S. District Judge Fernando Gaitan Jr. decided not issue a preliminary injunction that would stop the Missouri Department of Agriculture from carrying out the labeling law. He reasoned that since companies like Tofurky, who brought the suit, label their products as plant-based or lab-grown, the law does not harm them. In other words, since Tofurky and other companies are not violating the law, it doesn’t make sense to stop enforcement on their account. Tofurky, the American Civil Liberties Union, and the good Food Institute have appealed Judge Gaitan’s decision, asserting that Missouri’s law infringes upon their right to free speech. This means that the Missouri law can be enforced at the moment, but the decision is not final, as more litigation is yet to come.
Oregon goes for cage-free egg law. In August, Oregon passed a new law that would require egg-laying chickens, turkeys, ducks, geese, or guinea fowl to be kept in a “cage-free housing system.” This law will apply to all commercial farms with more than 3,000 laying hens. A cage-free housing system must have both indoor and outdoor areas, allow the hens to roam unrestricted, and must have enrichments such as scratch areas, perches, nest boxes and dust bathing areas. As of January 1, 2024, all eggs sold in the state of Oregon will have to follow these requirements for hens. The law does allow hens to be confined in certain situations, like for veterinary purposes or when they are part of a state or county fair exhibition.
City can ban backyard chickens, says court. The Court of Appeals for Ohio’s Seventh District upheld the city of Columbiana’s ordinances, which ban keeping chickens in a residential district, finding that they were both applicable to the appellant and constitutional. In this case, the appellant was a landowner in Columbiana who lived in an area zoned residential and kept hens in a chicken coop on his property. The appellant was eventually informed that keeping his hens was in violation of the city code. A lawsuit resulted when the landowner would not remove his chickens, and the trial court found for the city. The landowner appealed the trial court’s decision, arguing that he did not violate the city ordinances as they were written, and that the city applied the ordinances in an arbitrary and unreasonable way because his chickens did not constitute a nuisance. Although keeping chickens is not explicitly outlawed in Columbiana, the Court of Appeals for Ohio’s Seventh District found that reading the city’s zoning ordinances all together, the “prohibition on agricultural uses within residential districts can be inferred.” Furthermore, the court pointed out that the city’s code did not ban chickens in the whole city, but instead limited them to agricultural districts, and that the prohibition in residential areas was meant to ensure public health. For these reasons, the court found that the ordinances were not arbitrarily and unreasonably applied to the appellant, and as a result, the ordinances are constitutional. To read the decision in its entirety, click here.
EPA proposes controversial Renewable Fuel Standard rule. On October 15, EPA released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the Renewable Fuel Standard (RFS) program in 2020. The RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels. Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane. In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners. The administration promised a fix to this in early October, but many agricultural and biofuels groups feel that EPA’s October 15 proposed rule told a different story. Many of these groups are upset by the proposed blending rules, claiming that way the EPA proposes calculate the biofuel volumes would cause the volumes to fall far below what the groups were originally promised by the administration. This ultimately means the demand for biofuels would be less. On the other hand, the EPA claims that biofuels groups are misreading the rule, and that the calculation will in fact keep biofuel volumes at the level the administration originally promised. The EPA plans to hold a public hearing on October 30, followed by a comment period that ends November 29, 2019. Hopefully the hearing and comments will help to sort out the disagreement. More information is available here, and a preliminary version of the rule is available here.
New H-2A labor certification rule is in effect. The U.S. Department of Labor has finalized one of many proposed changes to the H-2A temporary agricultural labor rules. A new rule addressing labor certification for H-2A became effective on October 21, 2019. The new rule aims to modernize the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers. An employer may advertise their H-2A job opportunities on a new version of the Department’s website, SeasonalJobs.dol.gov, now mobile-friendly, centralized and linked to third-party job-search websites. State Workforce Agencies will also promote awareness of H-2A jobs. Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.
And more rules: National Organic Program rule proposals. The USDA has also made two proposals regarding organic production rules. First is a proposed rule to amend the National List of Allowed and Prohibited Substances for organic crops and handling. The rule would allow blood meal made with sodium citrate to be used as a soil amendment, prohibit the use of natamycin in organic crops, and allow tamarind seed gum to be used as a non-organic ingredient in organic handling if an organic form is not commercially available. That comment period closes on December 17, 2019. Also up for consideration is USDA’s request to extend the National Organic Program’s information collection reporting and recordkeeping requirements, which are due to expire on January 31, 2020. The USDA’s Agricultural Marketing Service specifically invites comments by December 16, 2019 on: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Great Lakes restoration gets a boost from EPA. On October 22, 2019, the EPA announced a new action plan under the Great Lakes Restoration Initiative (GLRI). The plan will be carried out by federal agencies and their partners through fiscal year 2024. Past GLRI action plans have removed environmental impairments on the lakes and prevented one million pounds of phosphorus from finding its way into the lakes. The plans are carried out by awarding federal grant money to state and local groups throughout the Great Lakes, who use the money to carry out lake and habitat restoration projects. Overall, the new plan’s goals are to remove toxic substances from the lakes, improve and delist Areas of Concern in the lakes, control invasive species and prevent new invasive species from entering the lakes, reduce nutrients running off from agriculture and stormwater, protect and restore habitats, and to provide education about the Great Lakes ecosystem. You can read EPA’s news release on the new plan here, and see the actual plan here. We plan to take a closer look at the plan and determine what it means for Ohio agriculture, so watch for future updates!
Whether we’re ready or not, Labor Day traditionally marks a transition from summer to fall. Pumpkin flavored everything will soon be available at a coffee shop and restaurant near you, and Ohio’s agritourism farms will surely be busy.
Whether you are just getting your agritourism farm up and running, or a seasoned agritourism veteran, it never hurts to take a moment to think about your liability risks. The OSU Extension Agricultural & Resource Law Program has developed a number of resources, available on our publications webpage, that can help you think about ways to minimize the legal risks to you and your farm. These resources include:
- Ohio’s Agritourism Law – Ohio law grants liability protection for personal injuries suffered while participating in an agritourism activity. It also provides for special taxation and zoning of lands where agritourism activities occur. This law bulletin explains what your farm needs to do to be covered by the immunity, and how much protection it provides. Click HERE to read the law bulletin.
- Farm Animals and People: Liability Issues for Agritourism – Farm animals can be a valuable attraction for an agritourism operation, but having people and animals interact on the farm creates liability risks. This factsheet explains a range of animal liability risks and provides a checklist to think about what you can do to reduce the risk of injury to your visitors, as well as reduce the risk of a lawsuit. Click HERE to read the factsheet.
- Agritourism and Insurance – Even with immunity laws in place, a farmer must carefully consider the farm’s insurance needs and ensure that it has adequate coverage. This factsheet explains agritourism insurance, why it may be needed, and more. It also provides a checklist that may help an agritourism farmer make sure that certain important insurance questions are addressed before an accident occurs. Click HERE to read the factsheet.
- Agritourism Immunity Laws in the United States – Many states, including Ohio, have taken steps to encourage agritourism by providing agritourism farms with some degree of immunity to liability. We explain Ohio’s law more in depth in our law bulletin titled “Ohio’s Agritourism Law,” but this factsheet compares approaches taken in other states and provides a checklist that helps an agritourism farm think about how much protection it has under these laws. Click HERE to read the factsheet.
- Agritourism Activities and Zoning – Zoning is a force to be reckoned with in many states, but many states, including Ohio, have taken steps to encourage agritourism through zoning regulations. This factsheet explains how zoning and agritourism interact across the country, including an explanation of Ohio’s current approach. Click HERE to read the factsheet.
- Youth Labor on the Farm: Laws Farmers Need to Know – Many Ohio agritourism farms provide employment to youth, who are able to learn about agriculture, business, and customer service through working at the farm. Those hiring youth under the age of 18 want to make sure that they are following federal and Ohio labor laws. Our latest law bulletin explains the youth labor laws that are unique to agriculture. Click HERE to read the factsheet.
Food sales present some special issues that you will want to think about if you wish to sell food at your farm. Depending upon the foods you sell, you may have to obtain a retail food establishment license for food safety purposes. The following resources can help you think through the steps you must take to sell food at your agritourism farm:
- Food Sales at Agritourism Operations: Legal Issues – Whether you sell fresh produce, cottage foods or baked goods, or prepare and serve food on-site, there are legal risks and requirements that may come into play. This factsheet explains some of the legal issues you should consider before selling food at your farm, and provides a checklist of things to consider before you begin selling food. Click HERE to read the factsheet.
- Selling Foods at the Farm: When Do You Need a License? – This Ohio-specific factsheet explores farmers, including those operating an agritourism farm, need to register or obtain a license in order to sell food at the farm. Click HERE to read the law bulletin.
Beyond our website, many of our peers at OSU Extension have developed a number of helpful resources for agritourism farms. OSU Extension’s Agritourism Ready webpage, which you can access at u.osu.edu/agritourismready/, is designed to be a one stop shop for preparing an emergency management plan. You can also read factsheets on Ohioline related to agritourism ranging from “Creating Signage for Direct Food and Agricultural Sales” to “Grants and Low-Interest Loans for Ohio Small Farms,” and “Maps, Apps and Mobile Media Marketing” to “Selling Eggs in Ohio: Marketing and Regulations.”
As new legal issues arise, we will continue to create resources that help farmers understand and mitigate their risk. In the meantime, we wish everyone a fun and safe fall at Ohio’s agritourism farms.
August turned out to be a very busy month for food law. We’re again reading headlines about the definition of meat and debates over cage-free egg laws. We’ve also come across some interesting criminal actions involving organic labeling fraud and undocumented workers at poultry processing plants. And yet again we have a Roundup update, but fortunately for Bayer, the target of the latest lawsuits are Home Depot and Lowe’s. So without further ado, here’s our latest gathering of agricultural law news you may want to know:
Tofurkey cries foul against state definitions of meat. The maker of edible vegetarian products designed to replicate the taste and texture of meats is fighting back against state labeling and advertising laws that require products labeled as “meat” to be made of meat. Tofurky filed a lawsuit in federal court in Arkansas to stop the state from enforcing such laws, which is similar to a lawsuit it filed in Missouri and yet another company filed in Mississippi. Livestock advocacy groups succeeded in having 12 states pass laws restricting the ability of food producers to refer to their products as meats if those products contain no meat. Livestock advocacy groups argue that the labeling practices are confusing and misleading to consumers, while companies like Tofurky argue that they have a constitutional right to describe their products with meat terminology. On its website, Tofurky lists beer brats, jumbo hot dogs, “slow roasted chick’n,” “ham style roast,” and more. None of the products contain meat.
Organic food fraud puts farmers in jail. A federal judge sentenced a 60-year-old Missouri farmer to serve 10 years and 2 months in prison after being convicted of wire fraud, which is the federal crime of committing financial fraud through the use of a telecommunications wire across state lines. This includes placing a phone call, sending an email, or advertising online in the furtherance of the fraudulent scheme. Another three farmers were also sentenced to prison for terms ranging from 3 months to 2 years for their participation. The fraud involved a decade-long scheme to mix traditional corn and soybeans with a small amount of organic grains and then label everything as certified organic. The grains were mostly sold as animal feed to producers and companies selling organic meat. Organic products generally are sold at a high premium, and the volume of goods in this scheme resulted in the farmers receiving millions of dollars from consumers that was fraudulently obtained. The lengthy prison sentences reflect the farmers’ intentional misrepresentation and mislabeling. In other words, it was not an accident.
Oregon joins California and Washington to make the west coast cage-free. States continue to battle over whether eggs should come from cage-free hens or caged hens. When we last discussed the topic HERE in May, the governor of the state of Washington had just signed his state’s cage-free requirement into law. Iowa, the nation’s leading egg producing state, has gone the other way in trying to limit cage-free egg production. Now, Oregon is set to ban the purchase or sale of eggs and egg products from caged hens starting in 2024. However, Oregon’s law exempts eggs and egg products from caged hens if the sale occurs at a federally inspected plant under the Egg Products Inspection Act or if the caged hens were at a commercial farm with a flock of fewer than 3,000 hens. You can read the text of the bill HERE.
Immigration and Customs Enforcement raids poultry processing plants. Federal immigration officials have alleged that managers at five Mississippi poultry processing plants knowingly hired undocumented aliens who are not authorized to work in the United States. Fines for individuals or companies proven to have actual knowledge that they hired undocumented workers can reach up to $3,000 per undocumented worker. Individuals may also face prison time. According to news reports, ICE arrested 680 possibly undocumented workers during its August 7th raids in Mississippi. In their applications for the search warrants, the investigators alleged that the companies hired undocumented workers who were wearing GPS ankle monitors as they await deportation hearings, reported Social Security numbers of deceased persons, and used different names at different times.
Latest Roundup lawsuit targets retailers Home Depot and Lowe’s. You’ve heard us talk before about the thousands of lawsuits against Monsanto (now owned by Bayer) based on the allegation that the glyphosate in products like Roundup has caused cancer. If you’d like a refresher, you can review our last post HERE. Now, instead of going after the manufacturer, a new plaintiff is going after retailers. Plaintiff James Weeks filed two class action complaints in federal court in California against Home Depot and Lowe’s, alleging that the home improvement giants failed to adequately warn customers about the safety risks posed by using the popular weed killer. Mr. Weeks argues that the labeling leaves the average consumer with the impression that the greatest risk of harm is eye irritation, when in fact the retailers know of the product’s potential carcinogenic properties. As these complaints are class action complaints, Mr. Weeks seeks to claim representative status over all consumers who purchased Roundup products from these retailers, and thereby lead the case against the retailers. It will be interesting to see whether the court certifies these cases as class actions, or if this strategy falls short for the plaintiff. You can read the complaint against Home Depot HERE.
Food giants seek silence from U.S. Commodity Futures Trading Commission. In 2015, the U.S. Commodity Futures Tradition Commission initiated a lawsuit against Mondelez International Inc. and Kraft Heinz Co. for allegedly manipulating the wheat futures market. All parties recently agreed to an undisclosed settlement, and entered into a consent order with the court to close the matter. The agreement apparently included a provision that all parties would refrain from publically commenting about the settlement. However, the federal agency ended up commenting on the settlement by the end of the week in which the agreement was finalized. Mondelez and Kraft Heinz believe that such statements violated the terms of the consent order, although the federal agency contests the allegation. Nonetheless, the confidentiality restrictions make it difficult to know the full details of the settlement. All we know for certain is that there was one.
Federal courts report that Chapter 12 family farm bankruptcies are on the rise. The federal court system releases data every quarter on the number of bankruptcies filed each month in that quarter. The latest numbers for April to June 2019 showed a slight increase in the number of Chapter 12 bankruptcies filed when compared to the same time period in 2018. Nationwide, there were 164 new filings, compared to 135 in the second quarter of 2018. The numbers show a gradual increase in the use of Chapter 12 bankruptcy since 2013, but the numbers are starting to tick up to levels not seen since the Great Recession. Chapter 12 bankruptcy is a special form of bankruptcy that can only be used by family farmers and family fishermen whose total debts do not exceed a certain dollar limit. The current dollar limit is $4.4 million, but there is legislation awaiting President Trump’s signature to increase the limit to $10 million. In large part because of these restrictions, Chapter 12 is one of the least commonly used forms of bankruptcy.
It’s been a busy July in the ag law world, to say the least. The Ohio General Assembly officially passed the hemp bill and a budget, RMA adjusted its prevent plant restrictions, and we have seen more activity on LEBOR. With everything that is going on, it’s time for another ag law harvest. Here’s our latest gathering of agricultural law news you may want to know:
Ohio Department of Agriculture announces website for future hemp program. Just days after S.B. 57 took effect, the Ohio Department Agriculture (ODA) launched a new webpage declaring “Hemp Is Now Legal.” However, the webpage goes on to explain that hemp cultivation, processing, and research licenses, which are required to legally do those activities, are not yet available as the rules and regulations have not been developed. ODA says the goal is to have farmers licensed and able to start planting hemp by spring 2020. As for CBD, the webpage says that it is now legal to sell properly inspected CBD products in Ohio. Note the “properly inspected” caveat. ODA wants to test CBD products for safety and accurate labeling before the product is sold to Ohio consumers. If they have not already done so, those wanting to sell CBD products should contact ODA to have their product tested. You can view the new webpage HERE.
Judge says $2 billion damages award is too much in Roundup case. A California state judge recently reduced the punitive damages award granted to Alva and Alberta Pilliod from $2 billion to $69 million, and reduced their compensatory damages from $55 million to $17 million. All combined, the couple would still receive $86.7 million in damages. As we previously discussed, the couple successfully convinced a jury that the glyphosate in Roundup significantly contributed to causing their non-Hodgkin’s Lymphoma. In reducing the awards, the judge explained that the punitive damages were excessive and unconstitutional because they exceeded the U.S. Supreme Court’s restrictions. However, the judge denied Bayer’s request to strike the punitive damages award outright.
U.S. EPA denies petition to ban use of cholrpyrifos pesticide. Back in 2007, environmental groups petitioned to have the U.S. EPA revoke tolerances and registrations for the insecticide chlorpyrifos, citing harmful effects to people and nature. Without getting into the merits of the allegations, the timeline and history of the U.S. EPA’s decision is fairly interesting. The U.S. EPA had not completed its review of the chemical by 2015, so the groups took the agency to court, where they received a court order compelling the U.S. EPA to make a decision. The agency issued a proposed rule at the end of 2015 that would have revoked the tolerances; however, the federal court said that the U.S. EPA had not completed a full review nor properly responded to the 2007 petition. Even though it made a decision, the court wanted to see more evidence of a full administrative review. By the time the agency had a chance to fully review the chemical’s effects, the Obama EPA had turned into the Trump EPA. In March 2017, the U.S. EPA issued a denial order regarding the petition, which essentially threw out the petition. The environmental groups submitted an objection shortly after the denial order. By July 2019, the U.S. EPA had a chance to think some more and issued a final order denying the objections. As it stands now, the agency has decided not to revoke tolerances or registrations for chlorpyrifos. To read the agency’s final order denying the objections, click HERE.
Animal Disease Traceability program to require RFID tagging for cattle and bison by 2023. The USDA’s Animal and Plant Health Inspection Service is looking to fully bring animal disease traceability into the digital world, at least for beef and dairy cattle and bison. By requiring radio frequency identification (RFID) tags, the service says that animal health officials would be able to locate specific animals within hours of learning about a disease outbreak, significantly less than with paper records. Starting at the end of 2019, the USDA will stop providing free metal tags, but would allow vendors to produce official metal tags until the end of 2020. At that time, only RFID tags may be used as official tags. Starting on January 1, 2023, RFID tags will be required for beef and dairy cattle and bison moving interstate. Animals previously tagged with metal ear tags will have to be retagged, but feeder cattle and animals moving directly to slaughter will be exempt. To learn more, view the USDA’s “Advancing Animal Disease Traceability” factsheet HERE.
Senators want to fund more ag and food inspectors at U.S. ports of entry. Citing the national interest to protect the nation’s food supply, four U.S. Senators have introduced a bill that would provide the U.S. Customs and Border Protection with additional funding over the next three years. In each of the three fiscal years, the funds would be used to hire, train, and assign 240 additional agriculture specialists, 200 new agriculture technicians who provide support to the agriculture specialists, and 20 new canine teams. The personnel would work at U.S. ports of entry, including seaports, land ports, and airports across the country. If passed, S.2107 would require the Comptroller General of the United States to brief congressional committees one year after the bill’s enactment on how well federal agencies are doing at coordinating their border inspection efforts and how the agriculture specialists are being trained. The bill comes months after U.S. Customs and Border Protection seized nearly a million pounds of Chinese illegally smuggled pork from China, where African swine fever has ravaged the country’s pork industry. For more information about the bill, click HERE.
Cannabis decriminalization bill introduced in Congress. Congressman Jerrold Nadler (D-NY) has introduced H.R. 3884 with the aim to do four things: 1) decriminalize cannabis at the federal level, 2) remove cannabis from the federal controlled substances schedules, 3) provide resources and rehabilitation for certain people impacted by the war on drugs, and 4) expunge certain criminal convictions with a cannabis connection. The bill currently has 30 co-sponsors, including 29 Democrats and 1 Republican. None of Ohio’s members of Congress have signed on as a co-sponsor at this time. The bill follows the recent change in status for hemp, which found favor in the 2014 and 2018 Farm Bills. However, that change in status was largely predicated on the argument that hemp is not marijuana, so it remains to be seen whether the political climate is ready to loosen restrictions on marijuana as well. For more information about the bill, click HERE.
Are you perplexed by what “Sell By,” “Use By,” “Best If Used By,” and similar terms mean on your packaged foods? If the date has passed, should throw the food out, or take your chances with it? You are not alone in wondering about the meaning of dates and other terms printed on our food packages. Under most circumstances, food manufacturers are not required to include date labels and terms on packaged foods, so when they do include such labels, there are no official guidelines to follow. As a result, we have the current voluntary patchwork of various confusing terms. On May 23, 2019, the U.S. Food & Drug Administration (FDA) took a step toward alleviating the uncertainty surrounding date labels. FDA released a letter addressed to the “Food Industry” at large. In the letter, FDA said that it “strongly supports” the use of the term “Best If Used By” when the “date is simply related to optimal quality—not safety.”
In its letter, FDA cites confusion over terms on date labels as a contributor to food waste in the United States. People don’t know what the dates mean, or they think the date means the food is expired or not safe to eat, and so they throw the food out. The range of different phrases on date labels only adds to the confusion. FDA says around 20% of food waste by consumers can be attributed to unclear date labels.
As was mentioned above, the food industry is largely on their own in terms of choosing what kind of date language to include on their packaged food labels. (One exception is infant formula, which FDA requires to have a date label reading “Use By.”) Consequently, many of the date labels on packaged foods are not indicative of when a food is safe to eat. Instead, FDA says that “quality dates indicate the food manufacturer’s estimate of how long a product will retain its best quality. If stored properly, a food product should be safe, wholesome, and of good quality after the quality date.” Therefore, FDA supports using “Best if Used By” as the standard to communicate to consumers when a packaged food product “will be at its best flavor and quality,” which does not necessarily mean that the food is unsafe to eat after that date.
Not a binding law or regulation
FDA’s recommendation for the food industry to use “Best if Used By” on packaged food when including a date label is just that: a recommendation. Food companies are not required to use the terminology on their packaged foods; with the exception of infant formula, no date label is required by federal law or regulation. However, FDA “strongly supports industry’s voluntary…efforts” to use “Best if Used By” to communicate food quality to consumers. Therefore, the letter to the Food Industry is not a mandate by FDA, but an endorsement and strong suggestion that the industry use “Best if Used By” to indicate food quality.
Will “Use By” be the next recommended standard?
In its letter, FDA touches on another recommendation by grocery and food associations, but declines to endorse it. Grocery and food groups advocate for the use of the term “Use By” on date labels on perishable foods that may be unsafe to eat after the printed date. While FDA is not currently recommending the use of “Use By,” it is important to note that industry groups support using the term in this way. Perhaps after further safety studies, “Use By” will be the next recommendation on the horizon for FDA.
What does FDA hope to accomplish with this recommendation?
While FDA is not requiring the food industry to use the “Best if Used By” date label, the purpose of its recommendation is to encourage the majority of the industry to adopt the language as a standard. The hope is, that as “Best if Used By” is more widely used and the public becomes more educated on its meaning, the amount of confusion, and accordingly, the amount of food waste, will greatly decrease. To learn more about FDA’s decision to endorse “Best if Used By,” see their article here. For more information about food product dating, see USDA’s page here.
A case out of the Fourth Appellate District in Gallia County serves as a lesson for farmers in Ohio who have roadside stands and sell products using the honor system. This case involves a honey stand owned by Frederick Burdell. He kept cash in the freezer at his stand so customers could make change for their purchases. The case, State v. Montgomery, was an appeal from the Gallipolis Municipal Court’s conviction of first-degree misdemeanor theft of honey and money from a “self-service honey stand.”
On appeal, the person convicted of theft claimed that the State of Ohio did not have enough evidence to convict her, and that her conviction was against the manifest weight of the evidence. In other words, she argued that the State did not have enough evidence to prove, beyond a reasonable doubt, that she committed the crime. The appellate court did not agree with the defendant’s argument; her conviction was upheld. For owners of roadside stands, the most relevant part of this case may not be the legal arguments, but instead, the evidence that was provided by the owner of the honey stand. Mr. Burdell’s surveillance setup around the honey stand helped the jury find the defendant to be guilty of theft. Owners of roadside stands for honey and other agricultural products should take note of the tools Mr. Burdell had in place to surveil his stand, as well as what he might have done to better protect his business from theft.
The appellate court’s opinion reveals that Mr. Burdell had multiple cameras set up around the honey stand, which were able to capture footage of a car driving down the driveway and a passenger exiting the car. From another viewpoint, a camera was able to record the defendant taking two items out of the refrigerator and all the cash from the freezer. Another shot provided a close-up, “head to toe” view of the woman walking away. What is more, the video captured the actions in color—so the jury was able to see the color of the car and the hair color of the thief. The appellate court found that the video evidence was sufficient enough for the trial court to reach the decision that the defendant was the perpetrator.
Owners of roadside stands can learn from Mr. Burdell’s set-up if they want to protect themselves from theft. Multiple color cameras placed at multiple angles around the area helped Mr. Burdell recover some of his loss from the theft. Owners may want to test cameras to make sure they are set up at good angles. In addition, although it is not clear from this opinion whether or not Mr. Burdell had security lights and other lighting around his stand, owners of roadside stands may want to consider the lighting around their premises—inadequate lighting might be detrimental to seeing what is happening in surveillance footage.
The trial court ultimately awarded Mr. Burdell $20 in restitution for the theft, which was the value of the honey stolen. Mr. Burdell was not reimbursed for the money that was stolen, apparently because he could “not state…with certainty” how much money was taken from the freezer, instead he guessed it could have been up to $50. There are certainly numerous tools roadside stand owners can use to keep track of money in their stands more accurately. Owners can keep detailed records of what products are in their stand at any given time and their prices, so they know exactly how much money should be in the cash box at all times, even after customers make change. Roadside stand owners can also make sure they or an employee or family member monitors the area around the stand from time to time, counts the cash, and possibly take away excess cash not needed at the site and store it in a safer place. Essentially, any actions an owner can take to keep track of how much cash is in a stand with more accuracy could prove helpful in recovering stolen cash if they ever find themselves in a situation like Mr. Burdell.
While the theft from Mr. Burdell’s self-service honey stand was unfortunate, it may serve as a helpful reminder to farmers who own similar honey, produce, or other stands of what they can do to protect their businesses. It is also timely information as farmers prepare for spring and summer sales from roadside stands. For those interested in more information on the case, the full opinion is available here.