Food

By: Evin Bachelor, Wednesday, September 04th, 2019

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.

By: Evin Bachelor, Thursday, August 22nd, 2019

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. 

By: Evin Bachelor, Tuesday, July 30th, 2019

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.

By: Ellen Essman, Monday, June 03rd, 2019

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.”

Food waste

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. 

Food safety

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

Posted In: Food
Tags: food, FDA, Food Labeling
Comments: 0
By: Ellen Essman, Thursday, April 25th, 2019

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

By: Evin Bachelor, Wednesday, April 24th, 2019

Since our last legislative update in March, Ohio’s legislators and staffers have been busy introducing more legislation.  As of this morning, there are 332 bills that have been introduced by members of the Ohio General Assembly since January.  Some have already passed both the Ohio House and Senate, but most are still pending.  While we cannot write about every pending bill, the following bills relate to agricultural, local government, or natural resource law.  In addition to these bills that we have not yet covered, see the end of this post for an update about bills we mentioned in our last blog post.

Tax

  • Senate Bill 183, titled “Allow tax credits to assist beginning farmers.”  Many agricultural news outlets quickly picked up on this bill.  The bill would authorize two nonrefundable tax credits.  One is for beginning farmers who attend a financial management program, while the other is for individuals or businesses that sell or rent farmland, livestock, buildings, or equipment to beginning farmers.  The Ohio Department of Agriculture would be responsible for certifying individuals as beginning farmers and for approving eligible financial management programs.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • House Bill 109, titled “Grant tax exemption for land used for commercial maple syruping.”  The bill would exempt “maple forest land” from having to pay property taxes.  The landowner would have to apply for the designation with the Ohio Department of Taxation.  Eligible lands are those lands bearing a stand of maple trees where 1) an average of at least thirty taps are drilled each year into at least fifteen different maple trees per acre of land, 2) the harvested sap is incorporated into a maple product for commercial sale, 3) the land is managed under a forest land maintenance plan, and 4) the property has ten or more acres or the sap harvest produces an average yearly gross income of more than $2,500.  Note that all four requirements must be met in order to qualify as an exempt maple forest land.  Click HERE for more information about the bill.

Real property

  • House Bill 103, titled “Change law relating to land installment contracts.”  Ohio’s Land Installment Contract Law, which applies to contracts involving properties with a residence but not contracts involving only open farmland, would see some significant changes under this proposed legislation.  The bill would shift the burden of paying property taxes and homeowner’s insurance from the buyer to the seller.  The seller would also be prohibited from holding a mortgage on the property.  The contract would have to include provisions stating that the seller is responsible for all repairs and maintenance on the property.  Interest rates would also be capped so that the rate cannot exceed the Treasury bill rate for loans of the same length of time by 2%.  For example, if a 5-year land installment contract is entered into on September 7th and the 5-year Treasury bill rate on that day is 2.64%, the interest rate for the land installment contract would not be able to exceed 4.64% under this bill.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

Estate planning

  • House Bill 209, titled “Abolish estate by dower.”  Dower provides a surviving spouse with rights in any real property owned by a decedent spouse.  This bill would end dower estates moving forward, but any interests that vest before the change would take effect would still be valid.  Click HERE for more information about the bill.

Local government

  • Senate Bill 114, titled “Expand township authority-regulate noise in unincorporated area.”  A board of township trustees is currently limited to regulate noise coming from either areas zoned as residential or premises where a D liquor permit has been issued.  The bill would expand the township’s authority to regulate noise anywhere within the unincorporated territory of the township.  However, the bill does not affect another section of the law that exempts agriculture from noise ordinances, so agricultural activities would not be subject to any new noise ordinances, should this law pass.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • Senate Bill 12, titled “Change laws governing traffic law enforcement.”  Notably for townships, this bill would prohibit township law enforcement officers or representatives from using a traffic camera on an interstate highway.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

Regulation of Alcohol

  • House Bill 181, titled “Promote use of Ohio agricultural goods in alcoholic beverages.”  The bill would authorize the Ohio Department of Agriculture to create promotional logos that producers of Ohio craft beer and spirits may display on their products.  Specifically, the bill would authorize an “Ohio Proud Craft Beer” and an “Ohio Proud Craft Spirits promotion.  Click HERE for more information about the bill.
  • House Bill 160, titled “Revised alcoholic ice cream law.”  Under current Ohio law, those wishing to sell ice cream containing alcohol must 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 that are authorized to sell alcohol.  Click HERE for more information about the bill.
  • House Bill 179, titled “Exempt small wineries from retail food establishment licensing.”  The bill would exempt small wineries that produce less than 10,000 gallons of wine annually from having to obtain a retail food establishment license in order to sell commercially prepackaged foods.  The sales of the prepackaged foods cannot exceed more than 5% of the winery’s gross annual receipts.  The winery would have to notify the permitting authority that it is exempt, and also notify its customers about its exemption.  Click HERE for more information about the bill.

Energy

  • House Bill 20, titled “Prohibit homeowner associations placing limits on solar panels.”  The bill would prohibit homeowners and neighborhood associations, along with civic and other associations, from imposing unreasonable restrictions on the installation of solar collector systems on roofs or exterior walls under the ownership or exclusive use of a property owner.  Condominium properties would similar be prohibited from imposing unreasonable restrictions where there are no competing uses for the roof or wall space where a solar collector system would be located.  According to the bill analysis, an unreasonable limitation is one that significantly increases the cost or significantly decreases the efficiency of a solar collector system.  Individual unit owners would also have the right to negotiate a solar access easement.  Click HERE or more information about the bill, and HERE for the current official bill analysis.
  • Senate Bill 119, titled “Exempt Ohio from daylight savings time.”  The bill would require Ohio to observe Daylight Savings Time on a permanent basis effective March 8, 2020.  The state’s clocks would spring forward in March, but there would be no falling back in the fall.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

As for the bills that we previously covered in our March legislative update, the following chart explains where those bills stand.  Those that have passed at least one chamber have their passage status underlined in the column on the right.  Those that have had at least one committee hearing list the number of hearings, while those that have not had any activity in committee state only the committee that the bill has been referred to from the floor.

Category

Bill No.

Bill Title

Status

Hemp

SB 57

Decriminalize hemp and license hemp cultivation

- Passed Senate

- Completed first committee hearing in House

Watershed Planning

SB 2

Create state watershed planning structure

- Referred to Senate Agriculture and Natural Resources Committee

Animals

HB 24

Revise humane society law

- Completed third committee hearing in House

Animals

HB 124

Allow small livestock on residential property

- Referred to House Agriculture and Rural Development Committee

Oil and Gas

HB 55

Require oil and gas royalty statements

- Completed first committee hearing in House

Oil and Gas

HB 94

Ban taking oil or natural gas from bed of Lake Erie

- Referred to House Energy and Natural Resources Committee

Oil and Gas

HB 95

Revise oil and gas law about brine and well conversions

- Referred to House Energy and Natural Resources Committee

Mineral Rights

HB 100

Revise requirements governing abandoned mineral rights

- Referred to House Energy and Natural Resources Committee

Regulations

SB 1

Reduce number of regulatory restrictions

- Completed three committee hearings in Senate

Business Law

SB 21

Allow corporation to become benefit corporation

- Passed Senate

- Completed first hearings in two separate House committees

Animals

SB 33

Establish animal abuse reporting requirements

- Completed fifth committee hearing in Senate

Local Gov’t

HB 48

Create local government road improvement fund

- Referred to House Finance Committee

Local Gov’t

HB 54

Increase tax revenue allocated to the local government fund

- Referred to House Ways and Means Committee

Property

HB 74

Prohibit leaving junk watercraft or motor uncovered on property

- Completed first committee hearing in House

By: Evin Bachelor, Friday, March 29th, 2019

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

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

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

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

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

Click HERE to view our latest law bulletin.

By: Evin Bachelor, Wednesday, March 20th, 2019

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

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

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

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

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

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

By: Ellen Essman, Tuesday, December 18th, 2018

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

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

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

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

Posted In: Food
Tags: FSMA, food, Food Safety, regulations
Comments: 0
By: Evin Bachelor, Friday, November 09th, 2018

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

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

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

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

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

Beef: non-meat proteins continue to target beef.

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

Dairy contracts: always know what you are signing.

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

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

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

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

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