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Map of Northeast Ohio counties
By: Peggy Kirk Hall, Friday, November 22nd, 2024

Our Agricultural & Resource Law Program team is excited to be part of the new Northeast Ohio Ag Innovation Center (NEO-AIC), a center that targets farm-based value-added businesses in Northeast Ohio. Based at OSU's campus in Wooster, Ohio, the center offers individual assessment and assistance to farmers in the Northeast region of the state who want to add or expand their production of value-added food, fiber, or fuel products.  Ohio State's center is the newest of the USDA-funded Ag Innovation Centers, which includes seven other centers in Massachusetts, New York, Minnesota, Georgia, Maryland, Missouri and Indiana.

The center will focus on "value-added agriculture," which refers to enhancing an agricultural product by altering its physical state, production method, or marketing approach, ultimately broadening the customer base for the product. Examples include:

  • Making a physical change, like milling wheat into flour or making strawberries into jam, that transforms the original product into something new.

  • Changing your production method, which includes growing organically, shifts how the product is produced and makes it more appealing to a specific market.

  • Adding marketing labels like “locally grown” or “Ohio Proud” which enhance their appeal by emphasizing local origins and can attract new customers. *

The NEO-AIC team will work with clients to assess and assist with their specific needs for developing or expanding value-added production.  The team will also coordinate connections with processors, markets, and distribution outlets throughout the region and identify new products and opportunities for farms. As the legal member of the team, I'll provide resources to help clients understand the laws and regulations that apply to their value-added production and their businesses.  Specific services the team will provide include:

  • Technical assistance:  Help with legal and food safety questions and making connections to local service providers.
  • Value chain coordination:  Help finding markets and distribution outlets for value-added products and strategic identification of new customer demands that can be filled by local farms.  
  • Business development support:  Help with developing the plans necessary to start or expand a business, including legal and regulatory requirements, financing options, and connections to resources.

Thanks to the hard work and foresight of Dr. Shoshanah Inwood, OSU secured financial support for the new center from USDA Rural Development.  With additional assistance from Ohio State University Extension and The Ohio State University College of Food Agriculture and Environmental Sciences, NEO-AIC is able to offer its services free of charge to Northeast Ohio farms. 

Visit this link to learn more about the NEO-AIC.

Corn field with setting sun.
By: Jeffrey K. Lewis, Esq., Friday, August 30th, 2024

We are back with another edition of the Ag Law Harvest, where we bring you rulings, laws, and regulations that affect the agricultural industry. This month's Ag Law Harvest is bringing the heat with H-2A wage rule injunctions, cultivated meat ban challenges, sales and use tax issues, and an emergency order from the EPA. 

Federal Judge in Georgia Blocks H-2A Wage Rule for Named Plaintiffs. A Georgia federal judge has limited the U.S. Department of Labor's enforcement of a rule titled "Improving Protections for Workers in Temporary Agricultural Employment in the United States" (the “Final Rule”). This rule, challenged by 17 states led by Kansas and Georgia, as well as by Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association (the “Plaintiffs”), is claimed to be unconstitutional. The Plaintiffs argued that the Final Rule violates the 1935 National Labor Relations Act (the “Act”) by granting H-2A farmworkers greater organizing and collective bargaining rights than those afforded to U.S. citizen agricultural workers, effectively bypassing the Act. The U.S. District Court in Georgia sided with the plaintiffs, ruling that the Department of Labor's Final Rule improperly creates a right that Congress did not intend and did not create by statute. The court emphasized that administrative agencies, including the DOL, cannot create laws or rights that Congress has not established. The court criticized the DOL for overstepping its authority, stating that while the DOL can assist Congress, it cannot assume the role of Congress. The court granted a preliminary injunction prohibiting the DOL from enforcing the Final Rule, but only for the Plaintiffs. Thus, the preliminary injunction will only apply in Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia. The injunction will also apply to Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association. We will keep you updated as the case goes up on appeal and how this ruling affects other H-2A lawsuits across the country. 

Florida Cultivated Meat Ban Challenged. A California business has filed a federal lawsuit against the state of Florida, challenging a law that bans the sale of cultivated meat. The company argues that Florida's prohibition is unconstitutional, claiming it violates their right to engage in interstate commerce by restricting their ability to sell their products across state lines. Upside Foods, Inc., the California based company, alleges that Florida Senate Bill 1084 (“SB 1084”), which bans the manufacture, distribution, and sale of cultivated meat, violates the U.S. Constitution’s Supremacy Clause because SB 1084 “is expressly preempted by federal laws regulating meat and poultry products.” Furthermore, Upside Foods alleges that SB 1084 violates the U.S. Constitution’s Dormant Commerce Clause because SB 1084 “was enacted with the express purpose of insulating Florida agricultural businesses from innovative, out-of-state competition like UPSIDE.” Upside Foods has asked the district court in Florida to declare SB 1084 unconstitutional and to issue an injunction preventing SB 1084’s enforcement. Proponents of SB 1084 argue that the law protects Floridians, however, Upside Foods alleges that the Florida ban isn’t meant to protect the public, rather it was passed to “protect in-state agricultural interests from out-of-state competition.” 

Board of Tax Appeals Finds Utility Vehicle Not Exempt Under Agricultural Sales Tax Exemption. Claugus Family Farm LP (CFF), an Ohio timber farm, purchased a 2015 Mercedes-Benz utility vehicle and claimed it was exempt from sales tax under Ohio’s Agricultural Sales Tax Exemption. After an audit, the Ohio Department of Taxation assessed the sales tax on the vehicle. CFF petitioned for reassessment, but the Ohio Tax Commissioner determined that CFF did not provide enough evidence to prove the vehicle was primarily used for farming as required by law. CFF then appealed to the Ohio Board of Tax Appeals, arguing that the vehicle was mainly used for farming operations, such as transporting people around the farm, monitoring tree health, applying pesticides, maintaining equipment, and carrying supplies. CFF claimed the vehicle was used 95% of the time on farming activities. Upon review, the Board of Tax Appeals noted that “the use of vehicles for transportation around a farm, as well as general uses such as delivering parts and cutting and hauling of wood and brush, do not constitute direct farming activities.” The Board held that the vehicle was used primarily for these purposes and not directly in farming and thus found the vehicle to be subject to Ohio’s sales and use tax. 

EPA Emergency Order Suspends Use of Pesticide DCPA/Dacthal. On August 7, 2024, the U.S. Environmental Protection Agency (“EPA”) issued an Emergency Order immediately suspending the registration and use of all pesticides containing dimethyl tetrachloroterephthalate (“DCPA” or “Dacthal”). The EPA cited the danger the substance poses to pregnant women and unborn babies. The agency determined that the continued sale, distribution, or use of DCPA products during the cancellation process would present an imminent hazard, justifying the emergency suspension without a prior hearing. Despite efforts by AMVAC Chemical Corporation, the sole registrant of DCPA products, to address these concerns, the EPA concluded that no practicable mitigations could make the use of DCPA safe.

Cattle standing in field with sunset in background
By: Peggy Kirk Hall, Thursday, May 16th, 2024

Producers shipping certain types of cattle and bison across state lines might have to use electronic identification (EID or RFID) tags if a final rule developed by USDA’s Animal and Plant Health Inspection Service (APHIS) becomes effective. Federal funding is available to help producers obtain the EID tags.  But efforts are underway to stop the EID rule from taking effect.  As we’ve seen in the past, disagreements continue over animal traceability and EID mandates. Here’s an update on the current events surrounding the EID issue.

The APHIS final rule.  The final rule announced by APHIS on April 26, 2024 will amend the animal traceability rule enacted in 2013.  That rule requires “official identification” on certain cattle and bison moved in interstate shipment for the purpose of animal disease traceability. Under the rule, “visual” ear tags are a form of official identification, in addition to certain pre-approved brands and tattoos and group lots.

The new final rule, originally proposed in 2022, will expand the requirements for ear tags used as official identification.  For animals tagged after the rule’s effective date, the ear tags “must be readable both visually and electronically (EID).” The EID rule will continue to apply only to these types of cattle and bison when shipped across state lines:

  • Sexually intact cattle and bison 18 months of age or older;
  • Dairy cattle;
  • Cattle and bison of any age used for rodeo or recreation events, shows, or exhibitions.

Effective date of the rule.  The EID requirement is not yet effective. The final rule will take effect 180-days after the rule was published in the Federal Register.  USDA published the final rule on May 9, 2024, making the effective date November 5, 2024.

Funding for EID tagsBefore APHIS finalized the rule, Congress approved funding to help producers voluntarily obtain EID tags, which cost around $3 each.  The Consolidated Appropriations Act passed in March of 2024 allocated $15 million for EID.  Ohio producers should contact the State Veterinarian’s office at the Ohio Department of Agriculture for information about the availability of free EID tags that comply with the official identification requirements.

EID bill in Congress.  A bill introduced on May 8 by Sen. Mike Rounds (R-SD) would counteract the APHIS final rule. The one-paragraph bill simply states:  “The Secretary of Agriculture shall not implement any rule or regulation requiring the mandatory use of electronic identification eartags on cattle or bison.”

Why the debate over EID?  Animal traceability has long been a controversial issue for the livestock industry.  APHIS and Sen. Rounds capture the two sides of the controversy well with their recent statements summarizing their efforts.  APHIS explains that “the most significant benefits will be enhanced ability to limit disease outbreak impact in the U.S., as well as maintaining foreign markets.”  On the other hand, Sen. Rounds states that “USDA’s proposed RFID mandate is federal government overreach, plain and simple. .. If farmers and ranchers want to use electronic tags, they can do so voluntarily.”

What’s next?  Given the slow pace of legislative activity in Congress, it’s unlikely that Sen. Rounds’ proposal will affect the November 5 effective date of the EID final rule.  Several associations have threatened to bring legal action against the rule, however, so it’s likely we’ll see litigation and other legal challenges.  As seems always to be the case with animal traceability, we still don’t yet know what the future holds.

Multi-colored chicken eggs in an egg carton
By: Peggy Kirk Hall, Thursday, April 25th, 2024

In time for another farmers’ market season, Ohio has a new food license available for food entrepreneurs who sell eggs, meats, and certain home-produced foods at farmers markets and similar venues.  A new “Low Risk Mobile Retail Food Establishment license” (Low Risk MRFE) offers a lower risk level license that will benefit many of Ohio’s farm-based and home-produced food vendors. Regulations establishing the new license were effective on February 12, 2024.

Ohio law has historically required an MRFE license for vendors selling certain foods from mobile units such as trucks, trailers, tents, and stalls at farmers markets and similar locations. All mobile vendors, regardless of the risk level of the food they were selling, had to obtain the same type of MRFE license.  That changes with the new regulations, which create two types of MRFE licenses, low risk and high risk, and different licensing requirements for each.

The new Low Risk MRFE license offers two positive changes for the mobile food vendors who qualify for it:

  • The Low Risk MRFE license will be half the cost of the High Risk MRFE license, and,
  • Low Risk MRFE license holders can use non-mechanical refrigeration rather than commercial equipment to maintain their food product temperatures.

Here’s an explanation of the new Low Risk MRFE license option.

Mobile vendors that qualify for the Low Risk MRFE license

The Low Risk MRFE license is available for mobile vendors whose activities fall into a low risk level.  Low risk level activity means the food poses a potential risk to the public in terms of sanitation, food labeling, sources of food, and food storage practices at the mobile unit, but the risk is lower than higher risk food activities. Low risk activities involve foods that were “pre-packaged” before being brought to sell at the mobile unit, and include the activities of holding pre-packaged refrigerated or frozen foods that require temperature controls for safety and offering pre-packaged foods that do not require temperature controls for safety. See Ohio Admin. Code 901:3-4-05(E)

If pre-packaged, these foods that are held and offered for sale from a mobile unit will qualify for the Low Risk MRFE:

  • Eggs
  • Frozen and refrigerated meats and fish
  • Foods from a licensed Home Bakery that require refrigeration, such as cheesecakes and cream pies
  • Cheeses and dairy products from a licensed Milk Producer or Milk Processor
  • Frozen foods from a facility with a Frozen Foods License
  • Cottage foods from a cottage food operation, but the MRFE is not required  if the cottage foods are sold at any of these locations:  farmers market, farm market, registered farm product auction, a political subdivision sponsored festival or celebration, or direct from the producer’s residence.

Holding temperature requirements for a Low Risk MRFE

There has long been confusion about the type of equipment an MRFE vendor must use to maintain the temperature of refrigerated or frozen foods, and some health departments have required vendors to use only commercial refrigerators or freezers.  That will change under the new rule, which allows a Low Risk MRFE license holder to choose whether to use mechanical or non-mechanical refrigeration such as ice, ice packs, gel packs, or dry ice.  The rule does not require the use of commercial equipment. 

There are several important points mobile vendors should note about the new rule:

  • When applying for the MRFE license or renewal, a vendor should explain their refrigeration choice and method, and the health department might require a plan or process for replenishing the cooling material if using non-mechanical equipment.  The health department will note the refrigeration information on the MRFE license.
  • The new rule requires a vendor to refresh or replenish the ice, ice packs, gel packs, or dry ice every four hours.
  • A vendor should keep a working thermometer inside each cooler or refrigerating unit and be able to document that the temperature is within the allowable range for the food held in the unit.
  • Gel packs and dry ice are preferred non-mechanical methods for maintaining food packaged in paper because wet ice can destroy paper packages and increase food safety risk.

See Ohio Admin. Code 3717-1-04.1(K)(K)

Lesser fee for Low Risk MRFE licenses

The new rule specifies that a Low Risk MRFE license fee will be 50% of the health department’s fee for high risk MRFEs. See Ohio Admin. Code 901:3-4-03(A)

New signage requirement for MRFEs

The new rule also requires any MRFE vendor to display specific information on the exterior of the mobile unit, in individual lettering at least three inches high and one inch wide.  The information must include:

  • Name of the operation
  • The operation’s city of origin
  • The operation’s telephone number, including area code

See Ohio Admin. Code 901:3-4-02(I)

High Risk MRFEs

A High Risk MRFE creates higher potential risks due to concerns with receiving, holding, cooking, cooling, processing, handling, and heating food products.  Activities such as assembling or cooking, heating, and reheating foods are high risk activities.  A few examples of high risk activities include making kettle corn or soft serve ice cream. Most farm-based and home-produced food activities will not require the High Risk MRFE.  See Ohio Admin. Code 901:3-4-05(E)

For additional questions about the new Low Risk MRFE license, contact your local health department or the Ohio Department of Agriculture's Food Safety Division.

Picture of utility vehicle.
By: Jeffrey K. Lewis, Esq., Thursday, March 28th, 2024

Spring has officially sprung, and so have a few interesting legal updates. In this edition of the Ag Law Harvest we cover aggravated vehicular assault in a farm utility vehicle, "Made in the USA" labels, the Corporate Transparency Act's legal woes, USDA's Dairy Margin Program, and the U.S House Committee on Agriculture's Agricultural Labor Working Group's final report. 

Driver of Farm Utility Vehicle Cannot be Found Guilty of Aggravated Vehicular Assault. 
The Supreme Court of Ohio ruled that a driver of a farm utility vehicle involved in a crash cannot be convicted of a felony for injuring passengers because the vehicle does not meet the definition of a “motor vehicle” under Ohio’s criminal code. Joshua Fork of Sandusky County crashed his Polaris utility vehicle while driving under the influence at a party in 2020. Two of Fork’s passengers sustained serious injuries as a result of the accident. Fork was convicted of operating a vehicle under the influence (OVI), and two counts of aggravated vehicular assault. Fork did not contest his OVI conviction but did appeal his aggravated vehicular assault conviction to the Sixth District Court of Appeals. The case eventually made its way to the Supreme Court of Ohio. 

In its decision, the Court found that Ohio law has two definitions of “motor vehicle.” One definition applies strictly to traffic laws and the other applies more broadly to Ohio’s “penal laws.” The Court held that the definition of “motor vehicle” that applies to penal laws, such as aggravated vehicular assault, exempts utility vehicles. The Court concluded that because of the utility vehicle exemption and the fact that the utility vehicle’s principal purpose is for farm activities, Fork cannot be found guilty of vehicular aggravated assault. To read more on the Supreme Court’s decision, visit: https://www.courtnewsohio.gov/cases/2024/SCO/0321/230356.asp

USDA Announces Final Rule on “Made in the USA” Labels. 
The U.S. Department of Agriculture (“USDA”) announced the finalization of a rule to align the voluntary “Product of USA” label claim with consumer understanding of what the claim means. The USDA's final "Product of USA" rule permits the voluntary use of the "Product of USA" or "Made in the USA" label claim on meat, poultry, and egg products. However, these labels can only be used if the products are derived from animals that were born, raised, slaughtered, and processed in the United States. The rule aims to prevent misleading U.S. origin labeling, ensuring that consumers receive truthful information about the origins of their food.

Under the final rule, the "Product of USA" or "Made in the USA" label claim will remain voluntary for meat, poultry, and egg products. It will also be eligible for generic label approval, meaning it won't require pre-approval by the USDA's Food Safety and Inspection Service (“FSIS”) before use, but establishments must maintain documentation supporting the claim. Additionally, the rule permits other voluntary U.S. origin claims on these products, provided they include a description on the package of the preparation and processing steps that occurred in the United States upon which the claim is made. 

Corporate Transparency Act Loses First Federal Court Battle. 
As we have previously reported (here), the Corporate Transparency Act (“CTA”) requires certain business entities to file Beneficial Ownership Information (“BOI”) with the Financial Crimes Enforcement Network (“FinCEN”) or face civil and criminal penalties. However, an interesting twist in the CTA saga has occurred. A federal court in Alabama issued an opinion ruling the CTA unconstitutional, concluding that the CTA exceeds the U.S. Constitution’s limits on Congress’s power, and issued an injunction against the U.S. Government from enforcing the CTA against the named plaintiffs in the case.  Therefore, the named plaintiff, Isaac Winkles, and companies for which he is a beneficial owner or applicant, the National Small Business Association, and the approximately 65,000 members of the National Small Business Association are currently not required to report beneficial ownership information to FinCEN. Everyone else must still comply with the CTA and the BOI reporting requirements. 

FinCEN released a statement acknowledging the court’s ruling but emphasized that only the named plaintiffs are excused from reporting beneficial ownership information to FinCEN at this time. On March 11, 2024, the U.S. Government filed a notice of appeal of the lower court’s ruling, hoping to reverse the injunction and the court’s decision. We will continue to monitor the situation and keep you informed of any updates to the CTA and BOI reporting requirements.

USDA Announces 2024 Dairy Margin Coverage Program. 
The U.S. Department of Agriculture (“USDA”) announced that starting February 28, 2024, dairy producers in the United States can enroll in the 2024 Dairy Margin Coverage (“DMC”) program. Enrollment for the 2024 DMC coverage ends on April 29, 2024. 

The USDA's Farm Service Agency (FSA) has made revisions to the DMC regulations to allow eligible dairy operations to make a one-time adjustment to their established production history. This adjustment involves combining previously established supplemental production history with DMC production history for dairy operations that participated in Supplemental Dairy Margin Coverage in previous coverage years. DMC has also been authorized through the calendar year 2024 as per the 2018 Farm Bill extension passed by Congress.

FSA Administrator Zach Ducheneaux encourages producers to enroll in the 2024 DMC program, citing its importance as a risk management tool. The program has proven effective, with over $1.2 billion in Dairy Margin Coverage payments issued to producers in 2023. Ducheneaux highlights the program's affordability, noting that it offers a sense of security and peace of mind to producers.

DMC is a voluntary risk management program that provides protection to dairy producers when the margin between the all-milk price and the average feed price falls below a certain dollar amount selected by the producer. In 2023, DMC payments were triggered in 11 months, including two months where the margin fell below the catastrophic level of $4.00 per hundredweight, marking a significant development for the program.

House Committee Releases Final Report Recommending Changes to H-2A Program. 
On March 7, 2024, the U.S. House Committee on Agriculture’s Agricultural Labor Working Group (“ALWG”) released its final report containing policy recommendations for U.S. agricultural labor. The report includes significant reforms to the H-2A program, many of which, as announced by the ALWG, received unanimous support from the bipartisan working group. The recommended policies encompass creating a single H-2A applicant portal, implementing H-2A wage reforms, establishing a federal heat standard for H-2A workers, and granting year-round industries such as livestock, poultry, dairy, peanuts, sugar beets, sugarcane, and forestry access to the H-2A program.

Flyer for Food Business Central course with photo of female baker and link to course
By: Peggy Kirk Hall, Friday, February 23rd, 2024

Are you a baker ready to sell your home-baked goods? Are you a farmer looking for value-added opportunities for crops you’ve grown or livestock you've raised? Are you an entrepreneur aiming to use local agricultural products to make value-added foods?

If you’ve answered yes to any of these questions, then the new Food Business Central online course can equip you with knowledge and strategies to launch a successful farm-raised or home-based food business in Ohio.

Navigating food regulations, establishing a new business, and applying best practices for food safety can be challenges for food entrepreneurs. This course is designed to serve as a centralized hub to connect you to information and resources regarding all types of food products you might want to make and sell.

We're part of the teaching team that created the course, which also includes Emily Marrison, OSU Family & Consumer Sciences Educator, Nicole Arnold, OSU Food Safety State Specialist,and Garth Ruff, OSU Field Specialist in Beef Cattle and Livestock Marketing. Our goal is to help food business entrepreneurs start off organized, safe, compliant, and strategic. The self-paced course asks key questions with considerations to explore and actions to take on your journey to start a food business. The cost of the course is $25, and registration is at go.osu.edu/foodbusinesscentral .

The  Food Business Central online course was partly funded through North Central Extension Risk Management Education, whose goal is to help farmers and ranchers effectively manage risk in their operations. This assistance comes from the United States Department of Agriculture through the National Institute of Food and Agriculture.

 

Calf standing in the snow
By: Jeffrey K. Lewis, Esq., Tuesday, January 30th, 2024

Happy 2024! We hope your new calendar year has gotten off to a delightful start. As we close out the first of twelve months, we bring you another edition of the Ag Law Harvest. In this blog post, we delve into the intricate world of employment contracts and noncompete agreements, classifying workers as independent contractors or employees, Ag-Gag laws, and agricultural policy. 

Ohio Man Violates Employer’s Noncompete Agreement. 
Kevin Ciptak (“Ciptak”), an Ohio landscaping employee, is facing legal trouble for allegedly breaching his employment contract with Yagour Group LLC, operating as Perfection Landscapes (“Perfection”). The contract included a noncompete agreement, which Ciptak is accused of violating by running his own landscaping business on the side while working for Perfection. Perfection eventually discovered the extent of Ciptak’s side business, leading to Perfection filing a lawsuit.

During the trial, Ciptak testified that Perfection was “too busy” to take on the jobs he completed. Additionally, Ciptak stated that the profits from his side jobs amounted to over $60,000. Perfection countered that they would have been able to perform the work and, because of the obvious breach of the noncompete agreement, Perfection lost out on the potential profits. The trial court ruled in favor of Perfection, ordering Ciptak to pay the $60,000 in profits along with attorney's fees and expenses, exceeding $80,000. Ciptak appealed, arguing that, according to Ohio law, Perfection could only recover its own lost profits, not Ciptak's gains from the breach. He also claimed that Perfection was not harmed as they were "too busy," and Perfection failed to provide evidence of lost profits. 

The Eighth District Court of Appeals ultimately found in favor of Perfection.  The court reasoned that “[t]his case came down to a credibility determination.” The court held there was no dispute that Ciptak had violated the noncompete agreement. What was in dispute was whether Perfection could have and would have performed the work. The Eighth District held that the trial court’s finding that Perfection could have performed the work was not unreasonable. The Eighth District noted that although Ciptak claimed that Perfection was “too busy” to do any of those jobs, Ciptak “provided no other evidence to support this assertion.” The Eighth District ruled that the evidence presented at trial showed that Perfection would have realized approximately the same amount of profit on those jobs as Ciptak did and, therefore, Perfection was damaged as a result of Ciptak’s breach of the noncompete agreement. 

New Independent Contractor Rule Announced by Department of Labor. 
The U.S. Department of Labor (“DOL”) has published a final rule to help employers better understand when a worker qualifies as an employee and when they may be considered an independent contractor. The new rule gets rid of and replaces the 2021 rule. As announced by the DOL, the new rule “restores the multifactor analysis used by courts for decades, ensuring that all relevant factors are analyzed to determine whether a worker is an employee or an independent contractor.” Thus, the new rule returns to a “totality of the circumstances” approach and analyzes the following six factors: (1) any opportunity for profit or loss a worker might have; (2) the financial stake and nature of any resources a worker has invested in the work; (3) the degree of permanence of the work relationship; (4) the degree of control an employer has over the person’s work; (5) whether the work the person does is essential to the employer’s business; and (6) the worker’s skill and initiative. The new rule goes into effect on March 11, 2024. 

Federal Appeals Court Reverses Injunctions on Iowa “Ag-Gag Laws.” 
On January 8, 2024, the U.S. Court of Appeals for the Eighth Circuit issued two opinions reversing injunctions against two Iowa “ag-gag laws”. At trial, the two laws were found to have violated the First Amendment of the United States Constitution. In its first opinion, the Eighth Circuit Court of Appeals analyzed Iowa’s “Agricultural Production Facility Trespass” law which makes it illegal to use deceptive practices to obtain access or employment in an “agricultural production facility, with the intent to cause physical or economic harm or other injury to the agricultural production facility’s operations . . .” The Eighth Circuit found that the intent element contained within the Iowa law prevents it from violating the First Amendment. The court reasoned that the Iowa law “is not a viewpoint-based restriction on speech, but rather a permissible restriction on intentionally false speech undertaken to accomplish a legally cognizable harm.” 

In its second opinion, the Eighth Circuit reviewed an Iowa law that penalized anyone who “while trespassing, ‘knowingly places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property[.]’” The court found that the Iowa law did not violate the First Amendment because “the [law’s] restrictions on the use of a camera only apply to situations when there has first been an unlawful trespass, the [law] does not burden substantially more speech than is necessary to further the State’s legitimate interests.”  The court noted that Iowa has a strong interest in protecting property rights by “penalizing that subset of trespassers who – by using a camera while trespassing – cause further injury to privacy and property rights.” 

Both cases have been remanded to the trial courts for further proceedings consistent with the forgoing opinions. 

USDA Announces New Remote Beef Grading Program.
Earlier this month, the U.S. Department of Agriculture (“USDA”) announced a new pilot program to “allow more cattle producers and meat processors to access better markets through the [USDA’s] official beef quality grading and certification.” The “Remote Grading Pilot for Beef” looks to expand on the USDA’s approach to increase competition in agricultural markets for small- and mid-size farmers and ranchers. The pilot program hopes to cut expenses that otherwise deter small, independent meat processors from having a highly trained USDA grader visit their facility. 

Under the pilot program, trained plant employees capture specific images of the live animal and the beef carcass. These images are then sent to a USDA grader that will inspect the images and accompanying plant records and product data, who then assigns the USDA Quality Grade and applicable carcass certification programs. The “Remote Grading Pilot for Beef” is only available to domestic beef slaughter facilities operating under federal inspection and producing product that meets USDA grading program eligibility criteria. More information can be found at https://www.ams.usda.gov/services/remote-beef-grading

USDA Accepting Applications for Value-Added Producer Grants Program. 
On January 17, 2024, the U.S. Department of Agriculture (“USDA”) announced that it is “accepting applications for grants to help agricultural producers maximize the value of their products and venture into new and better markets.” These grants are available through the Value-Added Producer Grants Program. Independent producers, agricultural producer groups, farmer or rancher cooperatives, and majority-controlled producer-based business ventures are all eligible for the grants. The USDA may award up to $75,000 for planning activities or up to $250,000 for working capital expenses related to producing and marketing a value-added agricultural product. For more information, visit the USDA’s website or contact your local USDA Rural Development office.

 

 Ohio Senate chambers at the Statehouse in Columbus Ohio
By: Peggy Kirk Hall, Tuesday, December 12th, 2023

The holiday season isn't distracting the Senate Agriculture and Natural Resources Committee from considering three legislative proposals concerning scenic rivers, small beer brewers, and state agriculture day designations.  On December 12, the committee will hear testimony on all three bills.  Here’s a summary of the proposals.

S.B. 156 - Designation of wild, scenic, and recreational rivers.  Senators Bill Reineke (R-Tiffin) and Bob Hackett (R-London) introduced this legislation to revise portions of the Ohio Scenic Rivers Program that were raising concerns from private property owners.  The committee will hold its fourth hearing on the bill on December 12.  The proposal makes the following changes to the Ohio Scenic River Law:

  • Clarifies that the designation of a Wild, Scenic or Recreational River does not grant authority to oversee private activities on private property or enter private land within the river area to the Ohio Department of Natural Resources (ODNR), which administers the program. 
  • States that the agency has management and oversight of lands along a designated river only for those lands the state owns.
  • Requires ODNR to adopt rules to govern the use, visitation, and protection of scenic river lands and to establish facilities and improvements within the areas necessary for visitation, use, restoration, and protection of the lands.
  • Clarifies that certain public entities must obtain approval from the ODNR Director to perform certain construction activities within 1,000 feet of a wild, scenic, or recreational river. 
  • Extends the public comment period following the announcement of intent to designate a new river from 30 days to 60 days.

S.B. 138 – Alcohol Franchise Law exemption for small brewers.  This bill introduced by Senator Andrew Brenner (R-Delaware) aims to help small brewers who annually manufacture less than 250,000 barrels (7.75 million gallons) of beer.  The bill exempts small brewers from Ohio’s Alcohol Franchise Law, which requires a beer or wine manufacturer to enter into a franchise agreement with a distributor and lays out requirements for the franchise agreement.  The exemption would allow small brewers to establish agreements with distributors under their own negotiated terms rather than the state-required terms.  S.B. 138 will see its second committee hearing on December 12.

H.B. 162 – Agriculture Appreciation Act.  The House of Representatives passed H.B. 162 in October, and it will have its  second hearing on December 12.  Proposed by Reps. Roy Klopfenstein (R-Haviland) and Darrell Kick (R-Loudonville), the bill designates the following federal agriculture days as state days in Ohio:

  • March 21 of each year as “Agriculture day”;
  • The week beginning on the Saturday before the last Saturday of each February through the last Saturday in February as "FFA Week";
  • October 12 of each year as “Farmer’s Day”;
  • The week ending with the second Saturday of March as “4-H Week.”

Keep up with the Senate Agriculture and Natural Resources Committee’s activity on the Ohio Senate’s website at https://ohiosenate.gov/committees/agriculture-and-natural-resources

By: Peggy Kirk Hall, Tuesday, August 22nd, 2023

The summertime slowdown hasn't affected the number of agricultural law questions we've received from across Ohio.  Here's a sampling of recent questions and answers:

Is a tree service business considered “agriculture” for purposes of Ohio rural zoning?

No, tree trimming and tree cutting activities are not listed in the definition of agriculture in Ohio’s rural zoning laws, although the definition does include the growing of timber and ornamental trees. The definition ties to the “agricultural exemption” and activities that are in the “agriculture” definition can be exempt from county and township zoning.  Here is the definition, from Ohio Revised Code sections 303.01 and 519.01:

"agriculture" includes farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; and the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production.

What are the benefits of being enrolled in the “agricultural district program” in Ohio, and is there a penalty for withdrawing from the program?

There are three benefits to enrolling farmland in the agricultural district program:

  1. The first is the nuisance protection it offers a landowner.  A landowner can use the defense the law provides if a neighbor who moves in after the farm was established files a lawsuit claiming the farm is a “nuisance” due to noise, odors, dust, etc.  Successfully raising the defense and showing that the farm meets the legal requirements for being agricultural district land would cause the lawsuit to be dismissed.  
  2. The second benefit is that the law also exempts agricultural district land from assessments for water, sewer and electric line service extensions that would cross the land.  As long as the land remains in agricultural district program, the landowner would not be subject to the assessments.  But if the land is changed to another use or the landowner withdraws the land from the agricultural district program, assessments would be due.  The assessment exemption does not apply to a homestead on the farmland, however.
  3. A third benefit of the agricultural district program law is that it requires an evaluation at the state level if agricultural district land is subject to an eminent domain action that would affect at least 10 acres or 10% of the land.  In that case, the Director of the Ohio Department of Agriculture must be notified of the eminent domain project and must assess the situation to determine the effect of the eminent domain on agricultural production and program policies.  Both the Director and the Governor may take actions if the eminent domain would create an unreasonably adverse effect.

As for the question about a withdrawal penalty, the law does allow the county to assess a penalty when a landowner withdraws land from the agricultural district program during the agricultural district enrollment period, which is a five-year period.  If a landowner removes the land from the agricultural district, converts the land to a purpose other than agricultural production or an agricultural conservation program, or sells the land to another landowner who does not elect to continue in the agricultural district program, the landowner must pay a withdrawal penalty.  The amount of the penalty depends on whether the land is also enrolled in the Current Agricultural Use Value program.  See the different penalty calculations in Ohio Revised Code 929.02(D(1).

Read the agricultural district program law in Chapter 929 of the Ohio Revised Code and contact your county auditor to learn about how to enroll in the program.

My farmland is within the village limits and the village sent me a notice that I must cut a strip of tall grass on my land.  Do I have to comply with this?

Yes.  Ohio law allows a municipality such as a village to have vegetation, litter, and “noxious weeds” laws.  These laws can set a maximum limit for the height of grass, require removal of litter on the property, and require ridding the land of “noxious weeds.”  The purpose of the laws is to protect property values, protect public health by preventing pests and nuisances from accumulating, and keep noxious weeds from spreading to other properties.  The village is within its legal authority to enforce its grass, litter, and noxious weeds laws on a farm property that is within the village limits. Failing to comply with an order by the village can result in a fine or  financial responsibility for all expenses incurred by the village to remedy the problem.

Is it legal to pull water from a river or stream to irrigate land in Ohio?

Yes, as long as the withdrawal occurs on private land or with the consent of the public or private landowner.  Registration with the Ohio Department of Natural Resources is required, however, if the amount withdrawn exceeds 100,000 gallons per day.  If the withdrawal is within an established "groundwater stress area," ODNR has the authority to reduce the amount of a withdrawal.  Withdrawal registration information is available on the Division of Water Resources website

Note that according to Ohio’s “reasonable use” doctrine, if a water withdrawal causes “unreasonable” harm to other water users, a legal action by harmed users could stop or curtail the use or allocate liability for the harm to the person who withdrew the water.  To avoid such problems, a person withdrawing the water should ensure that the withdrawal will not cause “unreasonable” downstream effects.

An urban farmer wants to build a rooftop greenhouse to grow hemp and then wants to make and sell cannabis-infused prepared foods at a market on her property.  Who regulates this industry and where would she go for guidance on legal and regulatory issues for these products?

Regulation and oversight of food products that contain cannabis is a combination of federal and state authority.  Federal regulation is through the U.S. Food and Drug Administration and state regulation is via the Ohio Department of Agriculture’s Food Safety Division.  She should refer to these resources:

As for the growing of hemp, the Ohio Department of Agriculture (ODA) regulates indoor hemp production in Ohio.  There is a minimum acreage requirement for indoor production—she must have at least 1,000 square feet and 1,000 plants.  See these resources from ODA:

Zucchini and yellow squash in a wooden box
By: Peggy Kirk Hall, Wednesday, July 26th, 2023

It’s the time of year when many Ohio vegetable gardeners are wondering, “why in the world did I plant so many zucchini?”  And it’s also when we start hearing the question, “is there any liability risk in giving away my garden produce?”  The good news is that Ohio has a food donation immunity law.  The law encourages food donations by granting liability protection to those who give perishable foods like garden produce to agencies that serve individuals in need.  A new amendment to the law recently passed in Senate Bill 16 broadens the types of donations that qualify for liability protection.  If you’re up to your ears in garden produce, you may want to know about the food donation immunity law.

Here's how the law works.

  1. The grant of immunity

The food donation immunity law is in Ohio Revised Code 2305.37.  It states in Section B that a person who, “in good faith,” donates “perishable food” to an “agency” is not liable for harm that may arise if the food, when distributed to an “individual in need,” is not “fit for human consumption.” 

  1. The donation must be made “in good faith” that the food is “fit for human consumption” when donated

There is not a definition for the term “in good faith,” but it’s a term commonly used in legal situations.  It means that a person acted with an “honest intent” and not with an intent to deceive or conceal something. The food donation immunity law provides two conditions to help ensure a person is donating in good faith.  First, the immunity only applies if a person determines, prior to making a donation, that the food is “fit for human consumption” at the time it is donated to an agency.  The term “fit for human consumption,” though not defined by this law, means that it is edible and safe.  But note there is no responsibility on the donor to ensure the food will be edible and safe after it is donated, when it is actually consumed or distributed.  Second, when determining whether food is fit for consumption, a donor cannot act with gross negligence or willful or wanton misconduct.  These two conditions mean that if a donor doesn’t inspect the food at all before delivery or knows something happened to the food that could make it unsafe for consumption but donates it anyway, the law will not protect the donor from liability if the food causes harm. 

  1. The law applies to “perishable food”

The law’s definition of “perishable food” is broad.  It refers to any food that may spoil or otherwise become unfit for human consumption due to its nature, age, or physical condition.  The definition includes fresh fruits and vegetables, fresh and processed meats, poultry, fish, seafood, dairy products, bakery products, eggs, refrigerated and frozen foods, and packaged foods.  It also includes food prepared but not served by a food service operation such as a restaurant, caterer, or hotel, and gleaned foods, discussed below.

  1. Donations must be to “agencies” that serve “individuals in need”

Donations to friends and family don’t qualify for the liability protection—the law only applies to a donation to an “agency” that serves “individuals in need.”  Several definitions and conditions are important.

  • An “agency” is an organization that distributes perishable food to “individuals in need,” either directly or indirectly. The term includes any nonhospital, charitable nonprofit corporation organized under Ohio nonprofit laws, or nonprofit charitable association, group, institution, organization, or society.  An “individual in need” is a person an agency determines to be eligible for food distribution due to poverty, illness, disability, infancy, or similar circumstances.
  • A qualifying agency is one that does not charge a fee for the food.  However, Senate Bill 16 recently amended the law to allow donations to an agency that charges an amount no more than the cost of handling the food.  That change means even if individuals pay a food handling cost to receive the donated food, the donor of the food will receive immunity.
  • Another section of the law, 2305.37(D), also grants immunity to an agency that distributes donated food as long as the agency determines the food is fit for human consumption when the food distribution occurs.

Ohio law also provides liability protection for “gleaning”

Growers can also be immune from liability when allowing someone else to pick or salvage the garden produce and donate it to an agency.  This is referred to as "food gleaning" and Ohio law also provides liability protection to those who allow food gleaning.  First, the gleaned food is considered “perishable food” and is covered by the food donation immunity law described above.  Second, the food gleaning immunity law in Ohio Revised Code 2305.35 grants a landowner or operator immunity for physical injuries sustained by a gleaner during the gleaning process. The landowner or operator is not liable for injuries to a gleaner resulting from any risks or conditions of the property or any normal agricultural operations on the property.

Ready to donate?

Gardeners ready to donate excess garden produce first need to locate an agency that serves individuals in need.  Find a local food bank, food pantry, soup kitchen, meals on wheels, or similar agency, and make sure the agency doesn’t charge individuals to receive the food or charges no more than the cost of handling the food.  These resources can help locate an agency: 

Before delivering garden produce to tan agency, be sure to inspect the produce and ensure it is fit for consumption—clean, not spoiled, and edible.  Don’t have time to pick and deliver?  Find a food gleaner who may be willing to glean your garden and donate the food to an agency.  Here’s a resource that lists Ohio food gleaners:  https://nationalgleaningproject.org/gleaning-map/states/ohio/?fwp_state=oh.

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