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Here’s our gathering of ag law news you may want to know:
We have a Farm Bill. After months of waiting, the United States Congress has passed the Agriculture Improvement Act of 2018, known as the Farm Bill. Members of Congress have been working for months trying to reconcile a House version and a Senate version in what is known as a Conference Committee. On Monday, December 10th, the Conference Committee submitted a report to members of Congress. Both the House of Representatives and the Senate approved the report by bipartisan majorities within a matter of days. The bill will become law once signed by President Trump, which analysts expect him to do by the end of this week.
The Ohio Ag Law Blog will explore some of the major provisions that will affect Ohio from a legal perspective, rather than restate what other news outlets and other sources have already said about the Farm Bill. First up will be a blog post about what the Farm Bill means for hemp in Ohio, so stay tuned for an in-depth analysis.
Syngenta settlement approved by federal judge. As previously reported in the Ohio Ag Law Blog here and here, the major multi-year class action lawsuit against Syngenta for failing to receive import approval from China before selling its Viptera and Duracade seeds in the United States has been settled for $1.51 billion. On December 7th, Judge John Lungstrum of the U.S. District Court for the District Kansas issued a final order granting the settlement. In the order, the court overruled a number of objections from class members who opposed the settlement. It also awarded one third of the settlement amount to the plaintiffs’ attorneys as attorney fees, valued at $503,333,333.33. The next step could involve appeals by those opposed to the settlement. According to a statement posted by one of the co-lead counsels for the plaintiffs, payments to eligible parties could begin as early as the second quarter of 2019, depending upon whether any appeals are filed.
Lawsuit centered on definition of “natural” allowed to proceed in California. Sanderson Farms labels its chicken products as “100% Natural.” However, the environmental groups Friends of the Earth and the Center for Food Safety have alleged that Sanderson Farms’ labeling is misleading, false, and unfair to competition. The lawsuit hinges around Sanderson Farms’ use of antibiotics in light of its “100% natural claims,” as the plaintiffs have argued that the reasonable consumer would believe “100% natural” to mean that the chickens were antibiotic free. Sanderson Farms has repeatedly countered that its chickens were cleared of any antibiotics before processing.
Sanderson Farms has asked Judge Richard Seeborg of the U.S. District Court for the Northern District of California to dismiss the case multiple times. Each time the court has either allowed the plaintiffs to amend their complaint or rejected Sanderson Farms’ motions. The most recent denial came days after Sanderson Farms issued a press release announcing that it would no longer routinely use antibiotics considered medically important for humans by March 1, 2019. The judge’s denial of the motion to dismiss does not mean that the plaintiffs are correct, it only means that the plaintiffs have presented enough facts for the case to continue.
The controversy stems from labeling and consumer expectations. We previously talked about the “what is meat” and “what is milk” debates in a previous blog post, and this issue is not much different. Again there is a word that has not been thoroughly regulated by a governing entity such that companies have used it to mean different things. As more labeling questions arise, the Ohio Ag Law Blog will keep you posted on trends and updates.
Ohio legislation on the move:
Lake Erie shoreline improvement bill passes. Last Thursday, the Ohio Senate and House of Representatives agreed to modifications to Senate Bill 51, which addresses Lake Erie shoreline improvements, along with multiple amendments. The primary purpose of the bill is to add projects for Lake Erie shoreline improvement to the list of public improvements that may be financed by a special improvement district (SID). According to the Legislative Service Commission’s analysis when the bill was introduced, a SID is “an economic development tool” that facilitates improvements and services in the district “through a special assessment levied against property in the district.”
The bill as passed also would remove a requirement, previously included in Senate Bill 299, for the Ohio Department of Agriculture to establish rules regarding the Soil and Water Phosphorous Program. Instead, the department would now be instructed to “establish programs to assist in reducing” phosphorous in the Western Lake Erie Basin.
Further, the House added amendments that change a previously passed spending bill, House Bill 529. The bill would authorize $15 million for a flood mitigation project in the Eagle Creek Watershed. The Columbus Crew would also receive $15 million for construction of a new stadium in Columbus. The Armstrong Air & Space Museum in Wapakoneta would receive $250,000 for improvements. A few other tax items were addressed.
The bill as passed is available for download from the Ohio General Assembly’s website here. An analysis of the bill as most recently referred from the House Finance Committee is available here. As of the time of posting, the Governor still has to sign Senate Bill 51 for it to take effect.
Ohio township bill passes. Last Thursday, the Ohio House of Representatives and Senate agreed to modifications to House Bill 500, which would make a number of changes to Ohio’s township laws. Some of the highlights of the most recent version include:
- A boards of township trustees must select a chairperson annually.
- Petitions to change the name of township roads will result in an automatic name change if the county commissioners do not adopt a resolution regarding the petition within 60 days.
- County commissioners will not be able to vacate township roads unless the applicable board of township trustees have adopted a resolution approving the vacation.
- A board of township trustees will have the authority to charge a fee against a person who appeals a zoning decision to the board of zoning appeals in order to defray costs associated with advertising, mailing, and the like.
- A board of township trustees may suspend a member of a township zoning commission or township board of zoning appeals after charges are filed against a member, but must provide a hearing for removal no later than 60 days after the charges are filed.
- In limited home rule townships, the current requirement that a township must submit a proposed zoning amendment or resolution to a planning commission will be optional.
This list comes from the Ohio Legislative Service Commission’s bill analysis as of the bill’s re-reporting by the Senate Finance Committee. The bill analysis has a full list of the changes that House Bill 500 would make. For more information on the bill, visit the bill’s webpage on the Ohio General Assembly website.
Importantly for agriculture, the Ohio Senate removed language from the bill that would have changed Ohio Revised Code § 519.21(B), which limits the authority of townships to restrict agricultural uses via zoning. Currently, townships may only regulate agricultural uses in platted subdivisions created under certain statutory procedures, and only if certain conditions are met. The House had passed a version that would have allowed townships to regulate agricultural uses in any platted subdivision, but the language would not have changed the certain conditions that would have to be met.
Tags: ag law harvest, farm bill, Syngenta class action, Syngenta litigation, Food Labeling, Ohio legislation
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The Joint Committee on Agency Rule Review (JCARR) plays an important role in Ohio’s government. Its review of new and old rules assists in verifying that administrative rules are not duplicative, overly-burdensome, or costly. Among other things, JCARR also helps to confirm that rules in fact carry out what the legislature had in mind when passing the law. In fact, on Monday, December 10, 2018, JCARR will decide the fate of the controversial watersheds in distress rules (we explained the proposed rules in this blog post) prompted by Governor Kasich’s July 2018 executive order.
The Joint Committee on Agency Rule Review, often referred to by its acronym, JCARR, was enacted by the Ohio General Assembly in 1977, and is codified in section 101.35 of the Ohio Revised Code. JCARR is charged with “review[ing] proposed new, amended, and rescinded rules” from Ohio’s administrative agencies. The state’s administrative agencies are numerous and include the Ohio Department of Agriculture, the Ohio Environmental Protection Agency, and the Ohio Department of Natural Resources, just to name a few. The administrative agencies are responsible for making the administrative rules to help carry out the Ohio General Assembly’s legislation.
Make-up of the committee
JCARR is made up of five members of each house of the Ohio General Assembly, meaning that five members from the house of representatives and five members from the senate make up the full committee. The speaker of the house appoints the five representatives, and the president of the senate appoints the five senators. The appointments must be bipartisan; each house may only appoint three members of the same political party. During the general assembly’s first regular session, the speaker of the house chooses the chairperson of JCARR from their house appointees, and the president of the senate chooses the vice-chair. During the second regular session, the chair and vice-chair are chosen in the reverse.
Conditions that rules must meet
If JCARR reviews an administrative rule and finds that rule to “violates one or more” of six requirements, the committee may “make a recommendation to invalidate the rule.” The six requirements are as follows:
- The rules do not exceed the scope of the rule-making agency’s statutory authority;
- The rules do not conflict with a rule of that agency or another rule-making agency;
- The rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed;
- The rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission (Revised Code 127.18);
- The rule-making agency has met the incorporation by reference standards for a text or other material as stated in Revised Code 121.72, Revised Code 121.75, or Revised Code 121.76; and
- If the rule has an adverse impact on business (Revised Code 107.52), the rule-making agency has demonstrated through the business impact analysis, the Common Sense Initiative office recommendations, and the agency’s memorandum of response to the recommendations, that the regulatory intent of the rule justifies its adverse impact on business.
Rule Invalidation
If a rule is found to violate any of the conditions listed above, a member of JCARR can move to recommend a resolution to invalidate the rule. The motion for invalidation must include the reason for the invalidation specifically based on one or more of the above conditions. The motion can be to invalidate the whole rule, or just part of the rule. If the motion for invalidation is seconded by another committee member, the members of JCARR can then vote on the motion. A majority of the committee is required to recommend a resolution for amended, revised, and rescinded rules. A two-thirds super majority is required to recommend a resolution to invalidate a no-change 5 year review.
If a motion for invalidation passes JCARR, the rule is put into suspension, meaning the administrative agency cannot proceed with the rule. A member of the committee then writes a concurrent resolution about invalidating the rule. Then, depending on which house the writer of the resolution comes from, the resolution goes to the house of representatives or senate, where the body has five session days to act on the resolution. If that time lapses, or there is no majority vote within five days, then the resolution dies, meaning the rule would no longer be suspended. If the resolution does pass the first body by majority vote, it then goes to the other house of General Assembly. Again, in the second body, the resolution must be voted on within 5 session days and be passed by a majority vote. If the resolution does not pass or is not voted on, again, the rule comes out of suspension. Finally, if the concurrent resolution for invalidating the rule passes both the house and senate, the rule is invalidated.
5 Year Review of Rules
Administrative agencies in Ohio must review their administrative rules every five years. The first part of the review requires the agency to ascertain whether or not the rule has a harmful effect on business in the state of Ohio. If the agency decides that the rule does have a bad impact on business, then the rule must be sent to the Common Sense Initiative office (CSI). The CSI is charged with finding ways to diminish the effects on business.
After the analysis of the effect on business, the agency decides whether or not the rule needs to be updated or removed. Upon deciding that a rule needs to be changed or removed, the agency must then file the rule with JCARR as a five year amended or rescinded rule. Then, JCARR goes through the process described above—the committee determines whether the amended or rescinded rule violates any of the six requirements, and if it does, the committee follows the process for rule invalidation.
If the agency determines that the rule should remain as it is, then it should file the rule as a five year no-change rule. JCARR then considers the following questions as pertains to the no-change rule:
- Should the rule be continued based on the intent of the statute under which the rule was adopted?
- Should the rule be amended to give more flexibility at the local level?
- Should the rule be rescinded or eliminated because of unnecessary paperwork?
- Does the rule meet the standards for incorporation by reference?
- Does the rule duplicate, overlap, or conflict with other rules?
- Is there a continued need for the rule?
- If the rule has an adverse impact on business, did the rulemaker demonstrate through the business impact analysis, CSI recommendations, and the memorandum of response that the regulatory intent of the rule justifies its adverse impact on business?
If JCARR finds that one of the above questions was violated or not sufficiently addressed by the agency, then the committee can entertain a motion for invalidation of the rule, triggering the rule invalidation process discussed above.
More information
JCARR has an excellent website with informative videos and other information about its purpose and how it carries out the review process, available here. For a deeper dive into JCARR and the review process, the committee’s procedure manual is also very helpful.
Tags: watersheds in distress, administrative rules, jcarr, Joint Committee on Agency Rule Review
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The midterm elections are over, and Thanksgiving is upon us. A lot of activity is expected out of Washington and Columbus as the legislative sessions wind up. The OSU Extension Agricultural and Resource Law team will continue to keep you up to date on the legal issues affecting agriculture as we enter into the holiday season.
Here’s our gathering of ag law news you may want to know:
State of Ohio sued over wind turbine setbacks. Four farmers in Paulding County have joined with The Mid-Atlantic Renewable Energy Coalition to sue the State of Ohio over wind turbine setbacks added to the 2014 biennial budget that some allege curtailed wind energy development in Ohio. In that budget bill, lawmakers included provisions late in the lawmaking process to amend Ohio Revised Code § 4906.20, which establishes the setback requirements for wind turbines. Those provisions more than doubled the distance that wind turbines must be located away from the nearest residential structures. The plaintiffs in this lawsuit allege that including these restrictions in the budget bill violated the single-subject provisions of the Ohio Constitution because the setbacks lack a “common purpose or relationship” to the rest of the budget bill. On this issue, the Ohio Supreme Court said in the case In re Nowak (cited as 2004-Ohio-6777) that the single-subject rule is a requirement that legislators must abide by, but that only a “manifestly gross and fraudulent” violation will result in the law being struck down. The plaintiff’s complaint is available here. Stay tuned to the Harvest for updates.
Department of Labor proposes rule requiring H-2A advertisements be posted online. The U.S. Department of Labor (DOL) published a notice of proposed rulemaking in the Federal Register on November 9th that would change how employers must advertise available positions before they may obtain H-2A worker permits. H-2A permits are work visas for temporary agricultural workers who are non-U.S. citizens. Currently, employers must advertise work in a local newspaper of general circulation for at least two consecutive days, one of which must be a Sunday. This requirement is located in the Code of Federal Regulations at 20 C.F.R. § 655.151. The DOL now proposes to modernize the recruitment advertising rule by requiring employers to post the jobs online instead of in print. The DOL’s notice explained that it believes online postings would more effectively and efficiently give U.S. workers notice of job opportunities. Further, the notice explained that the DOL intends to only require online advertisements, which would render newspaper advertisements unnecessary. U.S. Secretary of Agriculture Sonny Perdue issued a press release in support of the DOL’s proposal. The public may submit comments to the DOL about the proposed rule. Those wishing to comment may do so until December 10th, 2018, by visiting the proposed rule’s webpage in the Federal Register.
LLC agreement to adjust member financial contributions must be in writing. The Ohio Fourth District Court of Appeals recently affirmed a decision finding a verbal agreement to adjust contributions between members of a Limited Liability Company (LLC) to be unenforceable, even if the other party admitted to making the statements. Ohio Revised Code § 1715.09(B) requires a signed writing in order to enforce a “promise by a member to contribute to the limited liability company,” and therefore the court could not enforce an oral agreement to adjust contributions. The Fourth District Court of Appeals heard the case of Gardner v. Paxton, which was originally originally filed in the Washington County Court of Common Pleas. The plaintiff, Mr. Gardener, argued that his business partner breached an agreement to share in LLC profits and losses equally. In order to share equally, both parties would have needed to adjust their contributions, but Mr. Paxton only made verbal offers that were never reduced to writing. Because there was no writing, Mr. Paxton’s statements were not enforceable by his business associate against him.
Ohio legislation on the move:
The Ohio General Assembly has returned from the midterm elections with a potentially busy lame duck session ahead of it. Already a number of bills that we have been monitoring have seen activity in their respective committees.
- Ohio Senate Agriculture Committee held first hearing on multi-parcel auction bill. State senators heard testimony on House Bill 480 last Tuesday, November 13th. The bill would authorize the Ohio Department of Agriculture to regulate multi-parcel auctions, which are currently not specifically addressed in the Ohio Revised Code. The bill also defines “multi-parcel auction,” saying such an auction is one involving real or personal property in which multiple parcels or lots are offered for sale in part or in whole. The bill would also establish certain advertising requirements. The bill’s primary sponsor, Representative Brian Hill of Zanesville, says that he introduced the bill in an effort to recognize by statute what auctioneers are already doing, and to do so without interrupting the industry. The bill passed the Ohio House of Representatives 93-0 in June. For more information on the legislation, visit the House Bill 480 page on Ohio General Assembly’s website or view this bill analysis prepared by the Ohio Legislative Service Commission.
Tags: ag law harvest, wind turbines, wind development, employment law, H-2A, LLC
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Written by: Evin Bachelor, Law Fellow, and Ellen Essman, Sr. Research Associate
We’re back from the American Agricultural Law Association’s 2018 symposium, which was held in Portland, Oregon this year. We had the chance to hear from lawyers and experts from across the nation on various legal issues facing agriculture. Stay tuned to the Ag Law Blog for an update on what we learned at the symposium, but first, here’s the latest in agricultural law news:
Vote to designate watersheds in distress tabled by Ohio Soil and Water Conservation Commission. As recently reported in the Ag Law Blog, the Ohio Soil and Water Conservation Commission held a meeting this week to discuss whether to designate certain sub-watersheds in the Western Lake Erie Basin as “in distress.” Such designation would trigger additional management and reporting requirements on farmers in affected watersheds. The Commission voted 4-3 to table the discussion and wait for the Joint Committee on Agency Rule Review (JCARR) to examine the Ohio Department of Agriculture’s proposed rule changes next month. This week’s vote maintains the status quo without extending the “in distress” designation to other watersheds.
FDA releases two FSMA draft guidance documents. The Food and Drug Administration recently released draft guidance documents explaining how to follow rules under the Food Safety Modernization Act (FSMA). One document, titled “Guide to Minimize Food Safety Hazards of Fresh-cut Produce,” provides guidance on how to follow the Preventive Controls Rule under FSMA. “Fresh-cut produce,” is defined as “any fresh fruit or vegetable or combination thereof that has been physically altered from its whole state after being harvested from the field without additional processing.” The guidance would affect manufacturers, processors, packers, and holders of fresh-cut produce. The document covers current good manufacturing practices, as well as “new requirements for hazard analysis and risk-based preventive controls.” The draft guidance document, in addition to information on how to submit a comment on the guidance, is available here.
The second draft guidance document is titled “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: Guidance for Industry.” This document provides guidance on how to follow FSMA’s Produce Safety Rule. The guidance would affect produce farms. The guidance covers personnel qualifications and training, health and hygiene practices, biological soil amendments, contamination from domesticated and wild animals, suggestions for practices during the growing, harvesting, packing, and holding of produce, sanitation of equipment, recordkeeping on produce farms, and other topics. According to a press release about the two guidance documents, FDA will be holding a series of four public meetings at various places around the U.S. to discuss the second draft guidance document with those affected. FDA will be announcing the details about the meetings in the Federal Register soon.
It is important to remember that these are draft guidance documents. Furthermore, guidance documents are just that—guidance. In other words, the documents are there as suggestions on how to follow rules, and “do not establish legally enforceable responsibilities.”
EPA renews dicamba registration for cotton and soybeans, and updates labels. On October 31, 2018, the United States Environmental Protection Agency (EPA) shared its decision on changes to applying dicamba, the much discussed herbicide. EPA renewed the herbicide’s registration until December 20, 2020 for application to growing (what EPA terms “over-the-top”) dicamba-resistant cotton and soybean plants.
Below is EPA’s list of label alterations to dicamba products for the 2019-2020 growing season:
- Two-year registration (until December 20, 2020)
- Only certified applicators may apply dicamba over the top (those working under the supervision of a certified applicator may no longer make applications)
- Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting
- For cotton, limit the number of over-the-top applications from 4 to 2 (soybeans remain at 2 OTT applications)
- Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset
- In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
- Clarify training period for 2019 and beyond, ensuring consistency across all three products (Xtendimax with Vapor Grip Technology, Engenia Herbicide, DuPont FeXapan Herbicide)
- Enhanced tank clean out instructions for the entire system
- Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba
- Label clean up and consistency to improve compliance and enforceability
EPA’s press release is available here. More information on dicamba registration for resistant cotton and soybeans is available here.
Judge reduces jury verdict against Bayer’s Monsanto. As we predicted in a previous edition of The Harvest, Bayer’s Monsanto quickly challenged a quarter billion dollar verdict granted by a San Francisco jury to a plaintiff who alleged that Monsanto’s Roundup weed killer caused his cancer. Monsanto asked the judge to reconsider the jury’s verdict, and on Monday, October 22nd, the judge reduced the punitive damages portion of the jury verdict from $250 million to $39.25 million. The judge accepted the jury’s finding that Monsanto acted with malice, but said that the evidence did not justify a quarter billion dollar award. The judge did uphold the $39.25 million compensatory damages verdict. In total, the plaintiff would receive a $78.5 million award. Just this week, the plaintiff accepted the reduction in the award, saying that he will not ask the judge to reconsider the decision on damages. However, the litigation seems likely to continue, so stay tuned to the Ag Law Blog for more updates about the glyphosate and Roundup lawsuits.
Blockchain: the future of information sharing? We keep hearing about Blockchain technology, but what is it? Blockchain is a digital system that allows users to securely transfer information and money without an intermediary to facilitate the transfer. The transfers are recorded and timestamped, and the information contained in the “blocks” cannot be modified without the agreement of a majority of network users. The system is decentralized in nature, meaning that the information is not stored in one location but is rather is stored on servers across the globe. This makes the system more secure and less prone to modification because no single user can control the blockchain. Its early uses were for digital cryptocurrencies like Bitcoin, but its uses have expanded into information. The system has a potential in almost every sector of the economy, agriculture included. For example, Walmart announced plans to utilize blockchain to quickly track products like produce all the way from the ground to the consumer. By tracking information on foods like produce, companies like Walmart hope to be able to quickly determine sources of contamination in its food supply. This would not only be a way to save lives, but to also not have to waste produce that was not contaminated. For more information on Blockchain, here is a webinar from the National Agricultural Law Center that goes more in depth on what blockchain is, how it works, and how it can be utilized to help agriculture.
Tags: ag law harvest, watersheds in distress, FSMA, dicamba, Monsanto, Blockchain
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Here’s our gathering of recent agricultural law news you may want to know:
Ohio court upholds conservation easement restriction. In a battle over the future of a property subject to a conservation easement, the Twelfth District Court of Appeals has determined that the easement’s restriction on subdivision of the 76-acre property is valid. The easement requires that the property be retained forever in its natural and agricultural state and prohibits any subdivision of the property. The lower court determined that the subdivision is an invalid and unreasonable restraint on alienation because it does not contain a reasonable temporal limitation, but the Court of Appeals disagreed, noting that the property could still be sold and that the prohibition on subdividing the property was consistent with the purpose of the conservation easement. See Taylor v. Taylor here.
First decision is out in North Carolina nuisance lawsuits. On April 26, 2018, a federal jury found that Murphy-Brown LLC created a nuisance for neighbors living near Kinlaw Farms in North Carolina, where Murphy-Brown raises up 14,688 hogs. A subsidiary of Smithfield, the largest producer of pork in the world, owns Murphy-Brown LLC. Neighbors of Kinley Farms brought the lawsuit in 2014, asserting that the concentrated animal feeding operation (CAFO), with its open air lagoon, spraying of manure on nearby fields, and truck traffic, created “odor, annoyance, dust, noise and loss of use and enjoyment” of their properties. The neighbors also claimed that boxes of deceased hogs and hog waste on the farm attracted buzzards, insects and vermin. The jury found that Murphy-Brown substantially and unreasonably interfered with each of the ten plaintiffs’ use and enjoyment of their property and as a result, awarded each plaintiff $75,000 in compensatory damages and $5 million in punitive damages. Since the initial jury decision, the amount of punitive damages awarded to each plaintiff has been diminished to $250,000 due to a state law limiting such awards in North Carolina. Smithfield/Murphy-Brown LLC plans to appeal the decision. Similar lawsuits brought by neighbors against hog operations in eastern North Carolina will be heard in the near future. Several questions remain to be answered; one is whether Smithfield will be successful in their appeal. Another question is whether this case and the other lawsuits will inspire similar lawsuits against large livestock operations in other states.
Monsanto loses challenge of California glyphosate listing. A California Court of Appeals has held that the state may list glyphosate, the active ingredient in Monsanto's Roundup product, as a probable carcinogen under California’s Proposition 65, which requires the California Office of Environmental Health Hazard Assessment (OEHHA) to list all chemical agents with a known association to cancer. OEHHA based its listing on a 2015 report from the International Agency for Research on Cancer (IARC) which stated that glyphosate was a "probable" human carcinogen. Proposition 65 allows OEHHA to use an IARC finding for listing determinations, but Monsanto argued that such reliance represented an unconstitutional delegation of authority to a foreign agency. The court disagreed, ruling that OEHHA acted appropriately by relying on the IARC conclusion that glyphosate is a possible carcinogen. Monsanto Company v. Office of Environmental Health Hazard Assessment et al, F075362, 231 Cal.Rptr.3d 537 (Cal. Ct. App. April 19, 2018) is here.
National GMO Standard proposed. On May 4, the Agricultural Marketing Service (AMS) released the administrative rule it proposes to meet the 2016 Congressional mandate to develop a National Bioengineered Food Disclosure Standard. The rule would require that genetically modified or “bioengineered” food be labeled as such. According to the AMS, “[t]he proposed rule is intended to provide a mandatory uniform national standard for disclosure of information to consumers about the [bioengineered] status of foods.” The AMS is asking for interested parties to submit their comments about the proposed rule by July 3, 2018.
Industrial hemp bill on the move. Senate Majority Leader Mitch McConnell's federal legislation to allow states to regulate industrial hemp is gaining traction. The National Association of State Departments of Agriculture is supporting the bill and encouraging Congress to “provide an opportunity toward full commercialization of this new crop opportunity for farmers.”
More on Arkansas dicamba ban. In Arkansas, where the fight over the use of dicamba has raged for the past few years, the state Supreme Court has overruled several lower court judges’ rulings that certain farmers be exempted from the statewide ban on applying the volatile herbicide. The Arkansas State Plant Board has banned the use of dicamba in the state from April 16 through October 31 of this year.
Tags: ag law harvest; nuisance, gmo, hemp, dicamba, roundup, glyphosate, Monsanto
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The American Agricultural Law Association held its national conference last week in Louisville, Kentucky, and two Ohio law students from OSU Moritz College of Law and Capital University Law School took top honors in the student competitions. Evin Bachelor and Devon Alexander joined forces with U. of Houston law student Sara Luther and finished first in the Student Quiz Bowl competition. The Quiz Bowl requires law students to correctly answer questions about law, agriculture and agricultural law.
Bachelor also entered and won first place in the Student Poster Competition with his research project titled "Ohio: The Midwestern Ag Mediation Holdout." Bachelor discussed the potential for Ohio to become one of the last midwestern states to engage in USDA's Agricultural Mediation Program. Bachelor is a third year law student at OSU's Moritz College of Law and Alexander is a second year law student at Capital University Law School. Both hope to work in the agricultural law arena after law school.
OSU was able to send the students to the conference due to the generous support of the Paul L. Wright Endowment in Agricultural Law at OSU.
For more information about the American Agricultural Law Association, visit https://www.aglaw-assn.org/.
Tags: AALA, American Agricultural Law Association
Comments: 0
The United States Department of Agriculture (USDA) wants to hear from you. The agency published its “Identifying Regulatory Reform Initiatives” notice in the Federal Register on July 17 seeking “ideas from the public on how we can provide better customer service and remove unintended barriers to participation in our programs in ways that least interfere with our customers and allow us to accomplish our mission.”
The notice derives from the Regulatory Reform Task Force established by President Trump’s February 24, 2017 Executive Order 13777 on "Enforcing the Regulatory Reform Agenda". order requires the heads of federal agencies to evaluate existing regulations and make recommendations to repeal, replace or modify regulations that create unnecessary burdens.
Specifically, the USDA invites the public to evaluate the agency’s existing regulations. The agency poses several questions and encourages commenters to respond in detail to the questions:
- Are there any regulations that should be repealed, replaced or modified?
- For each regulation identified in question one, identify whether the regulation:
- Results in the elimination of jobs, or inhibits job creation;
- Is outdated, unnecessary, or ineffective;
- Imposes costs that exceed benefits;
- Creates a serious inconsistency or otherwise interferes with regulatory reform initiatives and policies;
- Is inconsistent with requirements that agencies maximize the quality, objectivity, and integrity of the information they disseminate;
- Derives from or implements previous presidential directives that have been rescinded or substantially modified.
The comment process offers the agricultural community an opportunity to draw attention to USDA regulations that create unnecessary or unintended negative impacts on agriculture. Considering the wide range of programs and regulations administered by the USDA in areas such as crop and livestock insurance; Farm Service Agency programs; commodity standards, grading and inspections; animal and plant health; and agricultural exports, it’s likely that agricultural producers will have thoughts to share with the agency. To that end, USDA will accept comments for the next year, but will review the comments in four phases. The deadline for the first review is September 15, 2017.
To read the agency’s notice and instructions for submitting comments on regulatory reform, visit this link.
Tags: USDA, regulations, regulatory reform, identifying regulatory reform initiatives
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Farmers are receiving a lot of attention from law firms these days, from video mailers to offers of free consultations, dinners, hats and more. The purpose of these marketing efforts is to entice farmers away from participating in the current class action lawsuit against Syngenta. Law firms want farmers to exclude themselves from the class action litigation and participate in individual lawsuits their firms would bring against Syngenta. With a deadline of April 1 looming, farmers must decide whether to remain in or step away from the class action lawsuit.
The class action lawsuit, known as “In re Syngenta AG MIR162 Corn Litigation,” is pending before the U.S. District Court in Kansas. It is one of two major lawsuits regarding corn rejected by China in 2013 because China had not yet approved Syngenta’s Duracade and Viptera brands of genetically-modified corn. The lawsuit consolidated hundreds of similar federal court cases that all claimed that Syngenta should be liable for the drop in corn prices that followed China’s rejections because Syngenta stated that it had obtained all necessary regulatory approvals for Duracade and Viptera, but instead released the seed before receiving China’s approval.
Class Certification
Last September, the court certified the litigation as a class action lawsuit, which allows the case to commence on behalf of all class members. Any farmer that fits within the class definitions is automatically included in the lawsuit and does not have to pursue individual litigation against Syngenta. The court established a nationwide class of “producers,” defined as any person or entity listed as a producer on an FSA-578 form filed with the USDA who priced corn for sale after November 18, 2013 and who did not purchase Viptera or Duracade corn seed (farmers who used Syngenta’s seed have different legal claims). The nationwide class is for producers bringing claims under federal law. The court also certified eight state classes for producers bringing claims under state laws, including Ohio. Syngenta appealed the class certification, but the Tenth District Court of Appeals denied the appeal.
Ohio farmers who fit the definition of “producers” are now automatically members of both the nationwide and Ohio classes. This means that every Ohio producer can receive a share of any award or settlement that results from the litigation, with required documentation. However, Ohio producers may choose to exclude themselves from or “opt out” of their classes and bring their own individual actions against Syngenta. The district court required attorneys for the class action suit to notify all potential producers of the lawsuit and of a producer’s right to be excluded from the litigation. A producer must send an exclusion request by April 1, 2017, following the process for exclusion stated in the court’s order, available here.
Pros and Cons of Staying in the Class
A major benefit of remaining in the class action lawsuit is convenience. Class members in the lawsuit have no responsibility for the proceedings, which falls upon the attorneys who represent the entire class. However, convenience comes at the cost of deferring decision making authority and losing a share of the award or settlement to court-ordered attorney fees, although class members may file objections to such decisions. Exclusion from the class gives producers freedom to pursue their own actions, which will likely lead to a stronger role in decision making and the ability to negotiate attorney fees. Exclusion also allows a farmer who may not agree with the litigation on principal to dissociate from the lawsuit.
What’s Next?
The court has scheduled “bellwether” cases in the lawsuit, which will go to trial in June. Bellwether cases are chosen to be representative of the class. Allowing these cases to go to trial gives an indication of how the litigation will play out—the strength of each side, how juries react and how the law applies to the situation. Upon completion of the bellwether cases, both sides should be better able to decide whether to settle the lawsuit or continue with litigation.
The U.S. District Court’s website for the Syngenta class action lawsuit is http://www.ksd.uscourts.gov/syngenta-ag-mir162-corn-litigation/
Tags: Syngenta litigation, Syngenta class action, Syngenta opt out
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Senate President Larry Obhof and Speaker of the House Cliff Rosenberger have made committee assignments for the new session of Ohio’s 132nd General Assembly. While there are no major changes to committee structure or leadership, the committees contain many new members, including several legislators serving their first terms as legislators.
Sen. Cliff Hite (R-Findlay) will again chair the Senate’s Agriculture Committee, with newly elected Sen. Frank Hoagland (R-Mingo Junction) serving as vice chair and first Senate termer Sen. Sean O’Brien (D-Bazetta) appointed as the ranking minority member. O’Brien previously served three terms in the House of Representatives, which included a term on its Agriculture and Rural Development Committee.
- Returning from last session’s Agriculture Committee are Senators Bill Beagle (R-Tipp City), Bob Peterson (R-Washington Court House) and Michael Skindell (D-Lakewood).
- New to the committee are Senators Bob Hackett (R-London), previous House member Stephanie Kunze (R-Hilliard), Frank Larose (R-Hudson), Charleta Tavares (D-Columbus) and Joe Uecker (R-Miami Township).
Rep. Brian Hill (R-Zanesville) will again lead the House Agriculture and Rural Development Committee with Rep. Kyle Koehler (R-Springfield) serving as vice chair for the first time and Rep. John Patterson (D-Jefferson) returning as the ranking minority member.
- Representatives Jack Cera (D-Bellaire), Christina Hagan (R-Marlboro Township), Michael O’Brien (D-Warren), Bill Patmon (D-Cleveland), Jeff Rezabek (R-Clayton), Michael Sheehy (D-Toledo) and Andy Thompson (R-Marietta) will return to the committee.
- New to both the House of Representatives and the committee are Representatives Rick Carfagna (R-Genoa Township), Jay Edwards (R-Nelsonville), Darrell Kick (R-Loudonville), Scott Lipps (R-Franklin) and Dick Stein (R-Norwalk).
- New to the committee are Representatives Candice Keller (R-Middletown), David Leland (R-Columbus) and Derek Merrin (R-Monclova Township), along with Former Senate President Keith Faber (R-Celina).
Neither committee has a meeting scheduled at this time. Follow the committees' work in the new legislative session at https://www.legislature.ohio.gov/.
Tags: Ohio legislature, Ohio agriculture committees, Ohio General Assembly
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Written by: Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program
Part One
Ohio’s 131st General Assembly came to a close in December of 2016. In Ohio, a legislative session (also known as a General Assembly) lasts for two years. A bill fails to become law if that bill was introduced during a legislative session but did not pass by the end of the session. Below is a summary of bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session. Time will tell whether our legislators will revive and reintroduce any of these proposals in the new 2017-2018 legislative session.
Nutrient Management
Application of Fertilizer and Manure and Senate Bill 16
Nutrient management remained a topic of discussion in Ohio throughout 2015 and 2016. Most notably, in July of 2015, SB 1 passed and became law. SB 1 placed restrictions on the application of nutrients in the Lake Erie Basin. For example, SB 1 placed restrictions on the application of manure under certain weather conditions.
The 131st assembly considered a similar bill, Senate Bill 16, in February of 2015. SB 16 sought to regulate many of the issues that SB 1 now regulates. SB 16 failed to pass and did not become law. Notwithstanding SB 16’s failure to pass, nutrient management was a popular topic for the 131st General Assembly.
To read SB 16, visit this page. The Ohio Legislative Service Commission’s analysis of SB 16 is available here.
House Bill 101 and the Response to Algal Blooms
House Bill 101 was introduced on March 4, 2015. The bill would have enacted a number of sections into the Ohio Revised Code that would have addressed algal blooms in Ohio waterways. First of all, under the language of HB 101, owners or operators of public water systems in areas at risk for harmful algal blooms, together with the directors of the Ohio EPA and ODNR, would have had the ability to develop emergency plans to combat the algal blooms. Secondly, the Directors of the Ohio EPA and the Department of Natural Resources were tasked with developing and circulating an early warning system for harmful algal blooms. Thirdly, the Ohio EPA would have had the responsibility to provide training to publicly owned treatment works and public water systems relating to monitoring and testing for “harmful algae and cyanotoxins in the water.” Finally, under HB 101, the Director of the Ohio Department of Natural resources would have had to study and report on the economic and environmental impacts of Canada geese and zebra mussels on Lake Erie.
The bill was referred to the House Committee on Agriculture and Rural Development on March 4, 2015 and was never acted upon.
To read HB 101, visit this page. The Ohio Legislative Service Commission’s analysis of HB 101 is available here.
Agricultural Operation and Management Plans and Senate Bill 224
Currently, operation and management plans are a voluntary measure for Ohio farmers. In Ohio, an owner or operator of agricultural land or an animal feeding operation may implement a plan which incorporates pollution abatement practices and best management practices for the operation. But, the 131st General Assembly considered a bill which would make such plans mandatory for operators who operate farms of 50 acres or more.
The proposed bill, otherwise known as Senate Bill 224, would have required operation and management plans to include certain standards for applying fertilizer or manure. The bill also gave the Ohio Director of Agriculture authority to enforce corrective actions against farm operations and to assess civil penalties for non-compliance. However, SB 224 did not pass in the Senate and was not signed into law.
To read SB 224, visit this page. The Ohio Legislative Service Commission’s analysis of SB 224 is available here.
Business
Series LLCs and House Bill 581
Ohio permits the formation of Limited Liability Companies, otherwise known as LLCs. LLCs offer many attractive benefits for a farming operation. Namely, LLCs provide liability protection to the members or owners of that LLC.
Some LLC farming operations have become more complex in recent years. As a result, some farming operations choose to have multiple LLCs across an entire farming operation. For example, a farm operation may have one LLC which owns only farm property and a second and entirely separate LLC that owns only farm machinery. But, multiple LLCs create additional complexity which may complicate a farming operation.
One proposed solution is the series LLC. The 131st General Assembly proposed the introduction of series LLCs in House Bill 581. A series LLC would allow a single LLC to create multiple series within the LLC without the need to create an entirely new LLC for each series. Under HB 581, a LLC organized as a series LLC would be able to limit the power of managers or members in different series within the series LLC. A series LLC would also be able to place different assets and obligations into different series within the LLC.
Under HB 581, the debts and obligations of a particular series within an LLC would have been limited to that series only. But, HB 581 did not pass during the 131st General Assembly. Therefore, series LLCs remain non-existent in Ohio.
To read HB 581, visit this page. The Ohio Legislative Service Commission’s analysis of HB 581 is available here.
Food
Donation of Food and House Bill 111
House Bill 111 was introduced on March 10, 2015. This bill would have allowed food service operations to apply for a rebate from the Director of Health if they donated the food to a nonprofit organization. The rebate would have been ten cents per pound of perishable food donated. HB 111 was referred to the House Ways and Means Committee on March 16, 2015 and no further action was taken.
To read HB 111, visit this page. The Ohio Legislative Service Commission’s analysis of HB 111 is available here.
Tags: Ohio legislation, Ohio 131st General Assembly
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