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Did you know that elephants can’t jump?  In fact, it’s impossible for elephants to jump because, unlike most mammals, the bones in an elephant’s leg are all pointed downwards, which eliminates the “spring” required to push off the ground.  

Unlike elephants, we have jumped all over the place to bring you this week’s Ag Law Harvest.  Below you will find agricultural and resource law issues that include, among other things, conspiracy, preemption, succession planning support, ag spending and disaster relief, and Ohio’s broadband and salmon expansion. 

Poultry price fixing conspiracy.  According to a press release from the Department of Justice (“DOJ”) a federal grand jury has decided to indict Koch Foods and four former executives of Pilgrim’s Pride for allegedly engaging in a nationwide conspiracy to fix prices and rig bids for broiler chicken products.  These indictments combine to make a total of 14 individuals charged in the conspiracy that allegedly started in 2012 and lasted until 2019.  The indictments allege that the defendants and co-conspirators conspired to suppress and eliminate competition for sales of broiler chicken products sold to grocers and restaurants.  The DOJ reiterated its commitment to prosecuting price fixing and antitrust violations.  These indictments come on the heels of President Biden’s Executive Order seeking to promote competition within the American Economy, which focused heavily on the agriculture industry.  In addition to Koch Foods, additional companies have been indicted in the conspiracy.  So far, Claxton Poultry and Pilgrim’s Pride have both been indicted in the conspiracy with Pilgrim’s Pride agreeing to pay a $107 million fine.  Koch Foods denies any involvement in the price fixing scheme.  

FIFRA giving Monsanto a little relief.  About a week before the trial of another lawsuit against the Monsanto Company (“Monsanto”) and its Roundup products, a California judge dismissed some of the claims filed by the plaintiff.  According to the judge, some of the claims asserted by the plaintiff were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and therefore could not be pursued.  The plaintiff claimed that Monsanto had a state-law duty to warn that Roundup causes cancer.  The judge noted that under FIFRA, a state cannot impose or continue to impose any requirement that is “in addition to or different from” those required by FIFRA.  At the time, federal regulations did not require Monsanto to place a cancer warning on its Roundup products.  The judge reasoned that since federal law is supreme (i.e. preempts state law) California cannot impose a state-law duty on Monsanto to warn that Roundup causes cancer.  The judge, therefore, found that the plaintiff cannot pursue her claims against Monsanto for failure to warn under California law.  This ruling is in contrast to a recent 9th Circuit Court of Appeals decision which concluded that the failure to warn claims brought by the plaintiff in that suit were not preempted by FIFRA.  Plaintiff has time to appeal the judge’s decision, even beyond the start of the trial and could rely on the 9th Circuit’s opinion to help her argue that her claims should not have been dismissed.

Competitive loans now available for land ownership issues and succession planning.  The USDA announced that it will be providing $67 million in competitive loans through the new Heirs’ Property Relending Program (“HPRP”).  The HPRP seeks to help agricultural producers and landowners resolve land ownership and succession issues.  Lenders can apply for loans up to $5 million at 1% interest through the Farm Service Agency (“FSA”) once the two-month signup window opens in late August.  Once the lenders are selected, heirs can apply to those lenders for assistance.  Heirs may use the loans to resolve title issues by financing the purchase or consolidation of property interests and for costs associated with a succession plan.  These costs can include buying out fractional interests of other heirs, closing costs, appraisals, title searches, surveys, preparing documents, other legal services.  Lenders will only make loans to heirs who: (1) look to resolve ownership and succession of a farm owned by multiple owners; (2) are a family member or heir-at-law related by blood or marriage to the previous owner; and (3) agree to complete a succession plan.  The USDA has stated that more information on how heirs can borrow from lenders under the HPRP will be available in the coming months.  For more information on HPRP visit https://www.farmers.gov/heirs/relending.  

House Ag Committee approves disaster relief bill.  The House Agriculture Committee approved an $8.5 billion disaster relief bill to extend the Wildfire and Hurricane Indemnity Program (“WHIP”).  The bill, known as the 2020 WHIP+ Reauthorization Act, provides relief for producers for 2020 and 2021 related to losses from the ongoing drought in the western half of the United States, the polar vortex that hit Texas earlier this year, wildfires that tainted California wine grapes with smoke, and power outages, like the one seen during the polar vortex in Texas, which caused dairy farmers to dump milk.  The bill makes it easier for farmers to recover for losses related to drought, now only requiring a D2 (severe) designation for eight consecutive weeks as well as allowing disaster relief payments for losses related to power outages that result from a qualified disaster event.  With the Committee’s approval the bill makes its way to the house floor for a debate/vote.  Whether it’s a standalone bill or a bill that is incorporated into an appropriations bill or a year-end spending measure remains to be seen.  

Senate Appropriations Committee approves ag spending bill.  The Senate Appropriations Committee voted in favor of a fiscal year 2022 spending bill for the USDA and FDA that includes about $7 billion in disaster relief and $700 million for rural broadband expansion.  The Committee approved $25.9 billion for the FY2022 ag spending bill, which is an increase of $2.46 billion from the current year.  In addition to disaster relief funds and rural broadband, the bill increases research funding to the USDA, increass funding for conservation and climate smart agricultural practices, and increases funding for rural development including infrastructure such as water and sewer systems and an increase in funding to transition rural America to renewable energy.  The ag spending bill is now set for debate and vote by the full Senate. 

Ohio to be the second site for AquaBounty’s genetically engineered salmon.  Land-based aquaculture company AquaBounty has selected Pioneer, Ohio as the location for its large-scale farm for AquaBounty’s genetically engineered salmon.  The new farm will be AquaBounty’s first large-scale commercial facility and expects to bring over 100 jobs to northwestern Ohio.  According to AquaBounty’s press release, the plan for the new farm is still contingent on approval of state and local economic incentives.  Ohio is still finalizing a package of economic incentives for the new location and AquaBounty hopes to begin construction on the new facility by the end of the year.  AquaBounty has modified a single part of the salmon’s DNA that causes them to grow faster in early development.  It raises its fish in what it calls “Recirculating Aquaculture Systems,” which are indoor facilities that are designed to prevent disease and protect wild fish populations.  According to AquaBounty, its production methods offer a reduced carbon footprint and no risk of pollution of marine ecosystems as compared to traditional salmon farming.  AquaBounty anticipates commercial production to begin in 2023. 

DeWine orders adoption of emergency rules to speed up the deployment of broadband in Ohio. Governor Mike DeWine signed an executive order which will help speed up the launch of the Ohio Residential Broadband Expansion Grant Program (the “Program”) which was recently signed into law by Governor DeWine.  The Program is Ohio’s first-ever residential broadband expansion program which grants the Broadband Program Expansion Authority the power to review and award Program grant money for eligible projects.  The Program requires a weighted scoring system to evaluate and select applications for Program grants.  Applications must be prioritized for unserved areas and areas located within distressed areas as defined under the Urban and Rural Initiative Grant Program.  The Program hopes to provide high-speed internet to Ohio residences that do not currently have access to such services.  With DeWine’s executive order, the Program can start immediately rather than waiting until the lengthy administrative rule making process is complete.  Normally, rules by a state agency must go through a long, drawn out process to ensure the public has had its input on any proposed rules and those affected the most can challenge or argue to amend the rules.  However, the Governor does have the ability to suspend the normal rule making process when an emergency exists requiring the immediate adoption of rules.  According to Governor DeWine’s executive order, the COVID-19 pandemic, the increase in telework, remote learning, and telehealth services have created an emergency that allows DeWine to suspend the normal rule making process to allow the Program to be enacted without delay.  Although emergency rules are in place, they are only valid for 120 days.  New, permanent rules must be enacted through the normal rule making procedure.  

Fair season is in full swing, and after a year off, fair goers are eager to indulge in fair food, games, and rides.  Additionally, thanks to a new law, Ohio is hoping to make this the safest fair season yet.  This comes after the tragic death of Tyler Jarrell at the 2017 Ohio State Fair.  The 18-year-old fair goer passed away when the Fire Ball ride broke apart.  Tyler and seven others were injured in the accident, which was later blamed on excessive corrosion.  To help prevent another tragedy, Governor DeWine signed House Bill 189, also known as “Tyler’s Law”, into action last November.  Tyler’s Law, which is enforced by the Ohio Department of Agriculture (“ODA”), strengthens Ohio’s existing laws on amusement rides, adds additional safety inspection standards, defines specific qualifications for ride inspectors, and outlines additional owner responsibilities.

It may come as a surprise, but the ODA is not only responsible for safe food, meat, dairy, and protecting Ohio’s livestock, crops, and plants; it is also responsible for ensuring the safety and wellbeing of Ohioans and visitors from across the world when they visit Ohio’s fairs, festivals, and amusement parks.  Specifically, the ODA is responsible for ensuring that all amusement rides are safe for ride enthusiasts.  Below is a brief overview of Ohio’s current amusement ride laws and the ODA’s new requirements enacted by Tyler’s Law. 

Amusement Ride Permits.  Owners of amusement rides must apply for a yearly permit through the ODA.  The ODA will only issue a permit if the owner has submitted a completed application with inspection fees, provided proof of insurance, provided an itinerary of where the amusement ride will be operating, and proof that the ride has undergone and passed an initial inspection.  

Initial inspection, midseason inspection, and additional safety inspections.  Ohio law requires that all amusement rides complete an initial inspection and requires certain amusement rides to undergo a midseason inspection.  All inspections must be completed by authorized inspectors and the ODA may require additional safety inspections of any amusement ride throughout the year.  

Fatigue and Corrosion Review.  One of the key changes implemented by Tyler’s law is an owner’s obligation to complete a fatigue and corrosion review. These reviews are additional safety inspections to help prevent another tragedy like the one in 2017.  A ride owner’s obligations are determined by how their ride is categorized.  Ohio has categorized amusement rides as follows: 

• “Low Intensity Rides” – includes all kiddie rides, carousels, go karts, and inflatable devises.  A kiddie ride is a ride that is primarily designed for children 48 inches and under. 
• “Intermediate Rides” – all rides that are not Low Intensity Rides, Towers, or Rollercoasters. 
• “Towers” – any amusement ride, other than a roller coaster, whose main body components reach a height of twenty feet or more. 
• “Roller Coasters” – any ride licensed under Ohio law and whose main body components reach a height of fifty feet or more.  

Owners of any type of amusement ride must ensure that that their ride meets the manufacturer’s minimum requirements for inspection and testing.  If there are no manufacturer specifications, then an owner must ensure that the ride conforms to generally accepted engineering standards and practices. 

In addition to meeting a manufacturer’s specifications or accepted engineering standards, owners of Intermediate Rides, Towers, and Roller Coasters must also conduct a visual inspection of their ride looking for signs of fatigue and corrosion.  If fatigue or corrosion are found, the owner must discuss the findings with the ride’s manufacturer or a registered engineer and implement any suggested mitigation strategies.  Once an owner has completed their visual fatigue and corrosion review, the owner must document the findings and provide the ODA with a copy.  All documents must be maintained for the life of the ride and provided to any subsequent owner.  If an owner fails to implement and follow the suggested mitigation strategies, the ODA can immediately shut down the ride.   

As it stands, owners of Low Intensity Rides and Intermediate Rides are the only category of owners obligated to follow the new fatigue and corrosion review rules.  Owners of Towers will be required to follow the new rules starting in April of 2022 and Owners of Roller Coasters will have to comply starting in April of 2023. 

Records of storage and/or out state operation.  Tyler’s law also requires owners of portable amusement rides to provide documentation providing all locations and dates where the ride was stored for 30 days or more.  Additionally, an owner is required to provide documentation identifying all locations and dates where the ride was operated, if it was operated outside of Ohio.  

Ride Inspections.  Ohio law also establishes the minimum number of times a ride must be inspected each year as well as the number of inspectors that must be at each inspectio

Maintenance requirements.  Owners are required to maintain maintenance, repair, pre-opening inspection, and any additional inspection records for each amusement ride.  An owner is required to keep these records for at least two years.  Owners must also provide checklists and training to any person who is to be performing ride maintenance throughout the ride’s operational cycle.  

Valid decals.  Owners of amusement rides are required to display a decal issued by the ODA representing that the owner and ride have complied with Ohio’s laws and are allowed to operate within the state.  If no decal appears, a ride should be prevented from operating until a valid permit is furnished by the owner.  

Rider Obligations.  Owners are not the only party with responsibilities when it comes to amusement rides.  Riders are prohibited from engaging in certain conduct that create an increased risk of danger for a rider and others around them.  A rider must: 

• Heed all warnings and directions of an amusement ride; and
• Not behave in any way that might cause injury or contribute to injuring self or other riders while occupying an amusement ride.

Conclusion.  Although amusement parks like King’s Island and Cedar Point are already subject to some of the additional safety measures of Tyler’s Law, this will be the first fair season with the new regulations.  Fair has provided generations of Ohioans with fond memories, joy, and reasons to celebrate, and through Tyler’s legacy, Ohio seeks to take all the steps necessary to try and ensure that fair is nothing but a happy occasion for all. To learn more about Ohio’s laws regarding amusement rides visit the Ohio Revised Code and the Ohio Administrative Code.  

As disruptive as 2020 was, the Ohio General Assembly persisted in working for Ohio citizens. On our blog we have been providing you with some in-depth analysis on key legislation passed by the previous General Assembly. Below you will find brief summaries on additional pieces of legislation passed by the Ohio Legislature in 2020. 

House Bill 24 – Revising Humane Society Law

H.B. 24 seeks to improve accountability for humane societies and other organizations throughout the state – this includes: (1) requiring each county humane society to submit an annual report of enforcement activities to the county sheriff; (2) making records of an enforcement activity by a humane society agent a public record; (3) prohibiting a humane society from entering into an agreement not to prosecute unless a judge has reviewed and approved the agreement; (4) specifying the removal procedures of a humane society agent from office; and (5) asserting that a humane society agent is a public servant for the purposes of bribery law and therefore a humane society agent is subject to criminal prosecution for bribery. 

H.B. 24 also expands the current law governing the seizure and impoundment of companion animals. Under H.B. 24, any animal can be seized and impounded when related to a violation of an animal cruelty law. However, written notice is required within 24 hours after the animal is seized and impounded. 

Governor DeWine signed H.B. 24 into law on December 29, 2020 and it becomes effective on March 31, 2021. 

House Bill 33 – Establishing Animal Abuse Reporting Requirements

H.B. 33 adds dog wardens, deputy dog wardens, or other persons appointed to act as an animal control officer to the list of professionals who must immediately report child abuse to a public services agency or peace officer. 

H.B. 33 requires veterinarians and specified social service or counseling professionals to report abuse of a companion animal to a law enforcement officer, humane society agent, or other animal control-type professional. Law enforcement, humane society agents, and animal control-type professionals must report abuse of a companion animal, under certain circumstances, to the appropriate social service professional. Lastly, H.B. 33 grants immunity to those required to make an animal abuse report, from criminal or civil actions, so long as the report was made in good faith. 

H.B. 33 goes into effect on April 12, 2021.  

House Bill 67 – Veterinarian Student Debt Assistance Program  

H.B. 67 creates a Veterinarian Student Debt Assistance Program which allows the State Veterinary Medical Licensing Board to agree to repay all or part of any educational loans taken out by a veterinarian while in veterinary college. Veterinarians must apply for the program and perform 12 or more hours of charitable veterinary services to be eligible. H.B. 67 goes into effect on April 12, 2021.

Senate Bill 21 – Benefit Corporations

S.B. 21 allows certain corporations to become benefit corporations. A benefit corporation is a corporation that includes a beneficial purpose in the corporation’s articles of incorporation. Under the new law, a beneficial purpose is defined as a “purpose to have a bona fide positive effect, or to reduce one or more bona fide negative effects, of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific, or technological nature for the benefit of persons, entities, communities, or interests aside from shareholders.” A benefit corporation is still allowed to operate for other purposes that help make the corporation profitable and neither the beneficial purpose nor any other purpose of the corporation has priority over the other.  Under the law, once a benefit corporation is established, the corporation is allowed to use “benefit” or “b-“ as a prefix. Examples of popular benefit corporations include Patagonia, Seventh Generation, TOMS, and Ben & Jerry’s. 

S.B. 21 goes into effect March 24, 2021. 

Senate Bill 276 – Updated Limited Liability Company Laws

S.B. 276 enacts the Ohio Revised Limited Liability Company Act (ORLLCA) and makes some major updates to Ohio’s LLC laws. While the Bill is expansive, the following are two major highlights from the legislation. 

Under current law, an Ohio LLC may be managed by its members or by a manager. In different scenarios, the authority to bind the LLC by a member or manager may vary. The ORLLCA does away with the member/manager distinction and provides that a person’s authority to bind the LLC must be determined by referencing the operating agreement, decisions of the members in accordance with the operating agreement, or by the default rules laid out in the ORLLCA.  

Another major change includes the creation of the series LLC. A series LLC consists of a “parent” LLC and separate subdivisions (or series). Under the ORLLCA, a “parent” LLC’s operating agreement may provide for the establishment of one or more designated series that has at least one member associated with each series and either (or both) of the following: (1) separate rights, powers, or duties with respect to each series; and/or (2) a separate purpose or investment objective. 

Under the ORLLCA, the debts, obligations, liabilities of a series do not jeopardize the assets held by the “parent” LLC or any other series. However, this limitation only applies if: (1) the records maintained for that series account for the assets of that series separately from any other assets of the “parent” LLC or other series; (2) the “parent” LLC’s operating agreement contains a statement to the effect of the limitation; and (3) the “parent” LLC’s articles of organization contain a statement that the LLC may have one or more series of assets subject to this limitation. So long as the records of the series are maintained in a manner that the assets of the series can be reasonably identified, the protection is likely to apply. 

The ORLLCA is set to take effect January 1, 2022. 

Our newest report for the National Agricultural Law Center examines the different approaches states are taking to regulate hemp under the 2018 Farm Bill.  Innovative State Approaches to Hemp Regulations under the 2018 Farm Bill is available on our website here and on the National Agricultural Law Center website here.  

Over the last few years, the agricultural sector has been buzzing with excitement about the potential of a new crop—industrial hemp.  For years, hemp was increasingly regulated across the country because it was legally classified the same as marijuana, another type of cannabis. 

In 1970, the Controlled Substances Act completely illegalized hemp production. This criminalized approach to hemp changed with the 2018 Farm Bill, however, which removed hemp from the definition of “marijuana” and gave states a chance to create their own hemp regulation programs.  Many states seized the opportunity.  As of May 5, 2020, the United States Department of Agriculture (USDA) had approved hemp plans from 16 states:  Delaware, Florida, Georgia, Iowa, Kansas, Louisiana, Montana, Nebraska, New Jersey, Ohio, Pennsylvania, South Carolina, Texas, Washington, West Virginia, and Wyoming. 

In this white paper, we examine the requirements for state hemp programs prescribed by the 2018 Farm Bill.  Even within these “requirements,” there is room for states to innovate. We’ll take a look at how they’ve done so as we summarize the unique aspects of state hemp programs that go beyond the USDA’s minimum requirements.  There are many creative approaches that states are taking in regulating hemp production. We will touch on some of these notable approaches and highlight the similarities and differences among the approved state hemp regulatory programs.

The USDA’s National Agriculture Library funded our research on this project, which we conducted in partnership with the National Agricultural Law Center.