industrial hemp

By: Ellen Essman, Monday, August 31st, 2020

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. 

By: Ellen Essman, Tuesday, March 03rd, 2020

For months, would-be hemp cultivators and processors in Ohio have been waiting for the Ohio Department of Agriculture (ODA) to announce when applications for licenses would be released.  Well, the wait is over—hemp applications became available online at 12:00 p.m. on March 3, 2020.  Normally, the application window for hemp cultivation would run from November 1-March 31.  Since the program is just getting off the ground this year, the cultivation application window has been extended to May 1, 2020.  Hemp processing applications are accepted at any time. 

As was discussed above, there are separate licenses for cultivating, or growing hemp, and for processing harvested hemp.  In other words, being licensed to cultivate hemp would not allow you to process hemp, and vice versa.  In order to apply for either one of the licenses, go to ODA’s hemp program page, available here. Once on that page, go to the “How to Apply for a License” drop-down.  There, ODA walks you through the steps you must follow in order to apply for a license.  First, you must create an OH|ID account.  This account must be in the name of the individual applicant, principal researcher and/or the individual who is authorized to sign on behalf of the business—be that the farm or a processing facility.  An email address and phone number for that person must also be included.  After creating your OH|ID account, sign into it.  After signing in, you can return to ODA’s hemp program page and go back to the “How to Apply for a License” drop-down and click on the link provided that reads “Then click here to apply.”

Keep in mind that if you wish to grow or process hemp, there are detailed rules you must follow, such as getting your sites approved, setback requirements, land use restrictions, and providing ODA with information like GPS coordinates of the land and the number of acres and plants you cultivate, just to name a few. To become licensed, you must also submit to a background check. A fee is required when you apply for a cultivation or processing license, and also annually when you renew your license.  Fees are also required for each type of processing you plan to do and each growing location. After you become licensed, you must allow ODA to inspect your farm or facility and take samples.  You must submit to testing to determine that your hemp or hemp products are at or below 0.3% THC.  Licensed cultivators must also pay fees for sampling and if any THC re-testing is requested.

ODA’s hemp program page also includes a helpful frequently asked questions (FAQs) tab that answers everything from the difference between hemp and marijuana, to how to complete your background check, to how to plant and harvest hemp. If you are interested in growing or processing hemp, you really should read ODA’s hemp page carefully, as there is a lot useful information available there.  For further information, Ohio’s hemp rules are available here. In addition, questions can be addressed by ODA by calling 614-728-2101​, or by emailing hemp@agri.ohio.gov

By: Ellen Essman, Monday, December 23rd, 2019

Hemp, drones, meat labeling and more—there is so much going on in the world of ag law!  With so much happening, we thought we’d treat you to another round of the Harvest before the holidays. 

Hemp for the holidays.  As 2020 and the first growing season approach, there has been a flurry of activity surrounding hemp.  States have been amending their rules and submitting them to the USDA for approval in anticipation of next year.  In addition, just last week USDA extended the deadline to comment on the interim final hemp rule from December 30, 2019 to January 29, 2020. If you would like to submit a comment, you can do so here. To get a refresher on the interim rule, see our blog post here

In other hemp news, EPA announced approval of 10 pesticides for use on industrial hemp.  You can find the list here.  Additional pesticides may be added to the list in the future. 

Congress considers a potential food safety fix.  It’s likely that over the last several years, you’ve heard about numerous recalls on leafy greens due to foodborne illnesses.  It has been hypothesized that some of these outbreaks could potentially be the result of produce farms using water located near CAFOs to irrigate their crops.  A bill entitled the “Expanded Food Safety Investigation Act of 2019” has been introduced to tackle this and other potential food safety problems.  If passed, the bill would give FDA the authority to conduct microbial sampling at CAFOs as part of a foodborne illness investigation.  The bill is currently being considered in the Senate Health, Education, Labor, and Pensions Committee. 

Animal welfare bill becomes federal law.  In November, the President signed the “Preventing Animal Cruelty and Torture Act” (PACT), into law.  PACT makes it a federal offense to purposely crush, burn, drown, suffocate, impale, or otherwise subject non-human mammals, birds, reptiles, or amphibians to serious bodily injury.  PACT also outlaws creating and distributing video of such animal torture.  The law includes several exceptions, including during customary and normal veterinary, agricultural husbandry, and other animal management practices, as well as during slaughter, hunting, fishing, euthanasia, etc.

No meat labeling law in Arkansas? Last winter, Arkansas passed a law that made it illegal to “misbrand or misrepresent an agricultural product that is edible by humans.” Specifically, it made it illegal to represent a product as meat, beef, pork, etc. if the product is not derived from an animal.  Unsurprisingly, the law did not sit well with companies in the business of making and selling meat substitutes from plants and cells.  In July, The Tofurky Company sued the state in the U.S. District Court for the Eastern District of Arkansas, Central Division, claiming the labeling law violates the First and Fourteenth Amendments, as well as the dormant Commerce Clause. On December 11, the District Court enjoined, or stopped Arkansas from enforcing, the labeling law.  This means that the state will not be able to carry out the law while the District Court considers the constitutionality of the law.  We will be following the ultimate outcome of this lawsuit closely. 

Ag wants to be part of the drone conversation. The Senate Committee on Commerce, Science, and Transportation is currently considering a bill called the “Drone Advisory Committee for the 21st Century Act.” If passed, the bill would ensure that the Federal Aviation Administration (FAA) includes representatives from agriculture, forestry, and rangeland, in addition to representatives from state, county, city, and Tribal governments on the Drone Advisory Committee (DAC).  Thus, such representatives would be part of the conversation when the DAC advises the FAA on drone policies. 

Ag financing tools may get an upgrade. The “Modernizing Agriculture and Manufacturing Bonds Act,” or MAMBA (what a great name) was introduced very recently in the House Committee on Ways and Means.  Text of the bill is not yet available, but when it is, it should be located here. According to this fact sheet, the bill would make a number of changes to current law, including increasing “the limitation on small issue bond proceeds for first-time farmers” to $552,500, repealing “the separate dollar limitation on the use of bond proceeds for depreciable property” which would mean famers could use the full amount for equipment, breeding livestock, and other capital assets, and modifying the definition of “substantial farmland” to make it easier for beginning farmers to gain access to capital. 

Shoring up national defense of agriculture and food is on the docket.  The Committee on Agriculture, Nutrition, and Forestry sent the National Bio and Agro-Defense Facility Act of 2019 (NBAF) to the floor of the Senate for consideration. Among other things, bill would allow the USDA, through the National Bio and Agro-Defense Facility, to address threats from human pathogens, zoonotic disease agents, emerging foreign animal diseases, and animal transboundary diseases, and to develop countermeasures to such diseases.  Essentially, USDA and NBAF would see to national security in the arena of agriculture and food. 

We hope you have a wonderful holiday season! We will be sure to continue the ag law updates in the next decade!

By: Ellen Essman, Friday, September 06th, 2019

These days, industrial hemp never seems to leave the news. Just this week, the U.S. Court of Appeals for the Ninth Circuit declined to decide a case involving the interstate shipment of hemp between Oregon and Colorado by way of Idaho.  Hemp is illegal in Idaho, where the product was seized and the driver was arrested, even though the 2018 Farm Bill allows for the interstate transportation of hemp.  The Ninth Circuit, reviewing the case, determined that the state court actions needed to be decided before federal courts could hear the case.  As you may be aware, Ohio also made news this summer when the state passed a bill legalizing hemp in the state. 

All of these developments involving industrial hemp may leave you with many questions. What is hemp? What did the 2018 Farm Bill do? What does Ohio’s new law do? Most importantly, can I grow and process hemp right now? To help farmers and others interested in the status of the hemp industry, we have recently added a law bulletin entitled “Legal or Not? Growing Industrial Hemp in Ohio” to our Ag Law Library.  There, we sort out the above questions and more.  We also discuss the anticipated development of federal and state hemp regulations.  The bulletin is available for you to read here

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

It’s been a busy July in the ag law world, to say the least.  The Ohio General Assembly officially passed the hemp bill and a budget, RMA adjusted its prevent plant restrictions, and we have seen more activity on LEBOR.  With everything that is going on, it’s time for another ag law harvest.  Here’s our latest gathering of agricultural law news you may want to know:

Ohio Department of Agriculture announces website for future hemp program.  Just days after S.B. 57 took effect, the Ohio Department Agriculture (ODA) launched a new webpage declaring “Hemp Is Now Legal.”  However, the webpage goes on to explain that hemp cultivation, processing, and research licenses, which are required to legally do those activities, are not yet available as the rules and regulations have not been developed.  ODA says the goal is to have farmers licensed and able to start planting hemp by spring 2020.  As for CBD, the webpage says that it is now legal to sell properly inspected CBD products in Ohio.  Note the “properly inspected” caveat.  ODA wants to test CBD products for safety and accurate labeling before the product is sold to Ohio consumers.  If they have not already done so, those wanting to sell CBD products should contact ODA to have their product tested.  You can view the new webpage HERE.

Judge says $2 billion damages award is too much in Roundup case.  A California state judge recently reduced the punitive damages award granted to Alva and Alberta Pilliod from $2 billion to $69 million, and reduced their compensatory damages from $55 million to $17 million.  All combined, the couple would still receive $86.7 million in damages.  As we previously discussed, the couple successfully convinced a jury that the glyphosate in Roundup significantly contributed to causing their non-Hodgkin’s Lymphoma.  In reducing the awards, the judge explained that the punitive damages were excessive and unconstitutional because they exceeded the U.S. Supreme Court’s restrictions.  However, the judge denied Bayer’s request to strike the punitive damages award outright.

U.S. EPA denies petition to ban use of cholrpyrifos pesticide.  Back in 2007, environmental groups petitioned to have the U.S. EPA revoke tolerances and registrations for the insecticide chlorpyrifos, citing harmful effects to people and nature.  Without getting into the merits of the allegations, the timeline and history of the U.S. EPA’s decision is fairly interesting.  The U.S. EPA had not completed its review of the chemical by 2015, so the groups took the agency to court, where they received a court order compelling the U.S. EPA to make a decision.  The agency issued a proposed rule at the end of 2015 that would have revoked the tolerances; however, the federal court said that the U.S. EPA had not completed a full review nor properly responded to the 2007 petition.  Even though it made a decision, the court wanted to see more evidence of a full administrative review.  By the time the agency had a chance to fully review the chemical’s effects, the Obama EPA had turned into the Trump EPA.  In March 2017, the U.S. EPA issued a denial order regarding the petition, which essentially threw out the petition.  The environmental groups submitted an objection shortly after the denial order.  By July 2019, the U.S. EPA had a chance to think some more and issued a final order denying the objections.  As it stands now, the agency has decided not to revoke tolerances or registrations for chlorpyrifos.  To read the agency’s final order denying the objections, click HERE.

Animal Disease Traceability program to require RFID tagging for cattle and bison by 2023.  The USDA’s Animal and Plant Health Inspection Service is looking to fully bring animal disease traceability into the digital world, at least for beef and dairy cattle and bison.  By requiring radio frequency identification (RFID) tags, the service says that animal health officials would be able to locate specific animals within hours of learning about a disease outbreak, significantly less than with paper records.  Starting at the end of 2019, the USDA will stop providing free metal tags, but would allow vendors to produce official metal tags until the end of 2020.  At that time, only RFID tags may be used as official tags.  Starting on January 1, 2023, RFID tags will be required for beef and dairy cattle and bison moving interstate.  Animals previously tagged with metal ear tags will have to be retagged, but feeder cattle and animals moving directly to slaughter will be exempt.  To learn more, view the USDA’s “Advancing Animal Disease Traceability” factsheet HERE.

Senators want to fund more ag and food inspectors at U.S. ports of entry.  Citing the national interest to protect the nation’s food supply, four U.S. Senators have introduced a bill that would provide the U.S. Customs and Border Protection with additional funding over the next three years.  In each of the three fiscal years, the funds would be used to hire, train, and assign 240 additional agriculture specialists, 200 new agriculture technicians who provide support to the agriculture specialists, and 20 new canine teams.  The personnel would work at U.S. ports of entry, including seaports, land ports, and airports across the country.  If passed, S.2107 would require the Comptroller General of the United States to brief congressional committees one year after the bill’s enactment on how well federal agencies are doing at coordinating their border inspection efforts and how the agriculture specialists are being trained.  The bill comes months after U.S. Customs and Border Protection seized nearly a million pounds of Chinese illegally smuggled pork from China, where African swine fever has ravaged the country’s pork industry.  For more information about the bill, click HERE.

Cannabis decriminalization bill introduced in Congress.  Congressman Jerrold Nadler (D-NY) has introduced H.R. 3884 with the aim to do four things: 1) decriminalize cannabis at the federal level, 2) remove cannabis from the federal controlled substances schedules, 3) provide resources and rehabilitation for certain people impacted by the war on drugs, and 4) expunge certain criminal convictions with a cannabis connection.  The bill currently has 30 co-sponsors, including 29 Democrats and 1 Republican.  None of Ohio’s members of Congress have signed on as a co-sponsor at this time.  The bill follows the recent change in status for hemp, which found favor in the 2014 and 2018 Farm Bills.  However, that change in status was largely predicated on the argument that hemp is not marijuana, so it remains to be seen whether the political climate is ready to loosen restrictions on marijuana as well.  For more information about the bill, click HERE.

By: Ellen Essman, Friday, July 19th, 2019

It’s been a busy week in Columbus, with the Ohio General Assembly sending multiple bills to Governor Mike DeWine for his signature.  One of the bills is one we have been following very closely—Substitute Senate Bill 57, or the “hemp bill.”

Bill history

Ohio’s hemp bill was originally introduced in the Senate in February.  The bill was written in response to the 2018 federal Farm Bill, which gave states the option to create hemp programs so that citizens within the state could cultivate and sell hemp products.  For a breakdown of the Farm Bill, see our post here.  Ohio’s hemp bill passed the Senate in March, and was sent to the House, where numerous amendments were made. 

House amendments

The Ohio House made many changes to the Senate’s original hemp bill.  In June, we highlighted those changes in a post you can find here.  Most importantly, the House version, in addition to requiring a license to cultivate hemp, also requires a license to process hemp into different products. Additionally, the House’s substitute version of the bill created a Hemp Marketing Program, which would be similar to other grain and soybean marketing programs, added legally cultivated hemp to the list of agricultural uses permitted under CAUV, required setbacks between hemp and medical marijuana cultivation, and banned people from obtaining both hemp licenses and medical marijuana licenses, among other changes. 

This week’s developments

We were not expecting the hemp bill to pass the General Assembly this week, as House Speaker Larry Householder indicated in June that the House would not vote on the bill until September 2019.  However, on July 17, 2019, the bill passed in the House with emergency language, and the changes were quickly accepted by the Senate. During the July 17 afternoon legislative session, we were given some possible insight into why the bill passed so quickly and unexpectedly; State Representative Koehler spoke about the need to help Ohio’s farmers given all the struggles they currently face.  Representative Koehler viewed quick passage of the bill as an opportunity for Ohio farmers to potentially have a new commodity crop in the ground next spring.

 The emergency language in the final version of the bill means that once signed by the Governor, the law will go into immediate effect.  In other words, once the bill passes, hemp and hemp products will be decriminalized in Ohio and the Ohio Department of Agriculture (ODA) will be able to immediately begin the process of writing regulations to carry out the new hemp cultivation and processing programs. 

Great! Can I plant hemp right now?

No. Even with the emergency language in the bill, a few things still need to happen before farmers can plant hemp.  First and most obviously, Governor DeWine still needs to sign the bill into law.  Then, ODA must begin its hemp program rulemaking.  The rules will not become effective until the United States Department of Agriculture (USDA) approves of Ohio’s hemp program.  After USDA approves the program, then ODA will be able to approve licenses for those who want to cultivate and process hemp. The Ag Law Blog will keep you updated on the hemp rules and USDA’s decision—stay tuned!

Posted In: Crop Issues, Uncategorized
Tags: hemp, industrial hemp
Comments: 0
By: Ellen Essman, Wednesday, June 26th, 2019

Since the passage of the 2018 Farm Bill, the world of agriculture has been all abuzz about the potential for adding a new crop to the rotation—industrial hemp. (Our post on the hemp provisions in the Farm Bill is available here.) The passage of the bill caused states like Ohio, which did not previously implement hemp pilot projects in 2014, to scramble to introduce state legislation allowing hemp to be grown within their boundaries.  What is more, questions have arisen about how hemp and products derived from the plant should be regulated under the federal law. 

Ohio continues to tinker with its hemp bill

Ohio’s bill to legalize hemp is currently stalled in the Ohio House of Representatives. Speaker Larry Householder indicated that the House will not vote on the bill until September 2019.  The hemp bill was first introduced in the Ohio Senate in February, passed the Senate in March, and advanced to the House floor on June 4. The bill still contains a lot of the same language and provisions from when it was introduced in February, which you can read about in our post here.  However, since it was first introduced, numerous additions have been inserted into the language of the bill.

First, the original version of the hemp bill only required a license to cultivate hemp.  The version currently on the House floor also requires a license to process hemp into different products.  Moreover, the current version of the bill would make licenses for both cultivating and processing hemp valid for three years instead of five years.  The new language in the bill also creates a Hemp Marketing Program, which would fall under the same laws and regulations as the grain and soybean marketing programs.  Legally cultivated hemp would also be added to the list of agricultural uses permitted under the current agricultural use value (CAUV) for land, which would mean land used to grow hemp would qualify for a lower tax assessment. 

The most recent version of the bill also adds many more topics to the list for the Ohio Department of Agriculture (ODA) to promulgate via regulation.  The new version tasks ODA with adding conditions for acquiring hemp cultivation licenses, such as experience, and procurement of equipment, facilities, a sufficient amount of land, and financial responsibility requirements.  ODA is charged with establishing a compulsory setback distance between hemp cultivation and medical marijuana cultivation, and with including regulatory language banning hemp cultivation or processing licensees from also cultivating or processing marijuana.  ODA must also establish requirements for recordkeeping and reporting for licensees.  These are just a few of the new regulations ODA is authorized to enact. 

The most recent bill, much like the first version, includes overarching prohibitions.  The current list of actions banned under the law is as follows:

  • No person shall cultivate hemp without a hemp cultivation license issued by ODA;
  • No person shall process hemp without a hemp processing license issued by ODA;
  • A person who is licensed to cultivate or process hemp shall not violate any provision of the hemp law or regulations;
  • A person subject to a corrective action plan issued by ODA shall not fail to comply with the plan;
  • No person may transport hemp in violation of the hemp law or rules; and
  • Any other requirements or procedures necessary to enforce the law. 

The most recent rendition of Ohio’s hemp bill would keep the provisions of the first version of the bill relating to negligent and reckless violations of the law, but new enforcement tools have been added.  Finally, the new and improved hemp bill includes an emergency clause, which would make the legislation immediately effective upon its passage in both houses and signature by the governor. 

FDA holds a hearing on the safety of CBD products

On May 31, the Food and Drug Administration (FDA) held public hearing to gather information and scientific data about cannabis products, so that such information can be used for future regulatory oversight by the agency.  Industrial hemp is a type of cannabis plant, so the hearing included discussion of hemp and hemp-derived compounds, such as cannabidoil (CBD).  In particular, FDA was interested in whether different amounts of cannabis in a product would affect people differently, or cause safety concerns, whether there is any data to show that cannabis is safe in food and dietary supplements, whether there are, or if there need to be, industry standards in the manufacturing of cannabis products to ensure safety and quality, and how marketing and labeling should be used to address potential risks connected to using cannabis products.   The hearing did not result in any FDA decisions on cannabis products and their regulation, although it is an indicator that regulations will probably be coming soon.  This means that sales of CBD oil and other products made from hemp will have to follow FDA regulations in order to be manufactured and sold.  Information on the hearing is available here.  As we reported in one of our Ag Law Harvest posts, those people still interested in submitting their comments about cannabis and cannabis compounds to the FDA can do so until July 2. 

USDA releases its interpretation on transportation of hemp

In another federal development, on May 28, the United States Department of Agriculture (USDA) released a memo addressing the transportation of hemp.  The 2018 Farm Bill specified that states can ban hemp production and sales within their boundaries, but states cannot bar legally grown hemp from being transported through their state.  Since hemp regulations under the 2018 Farm Bill have not yet been promulgated, technically, there is no hemp that has been legally produced under the new law yet.  As a result, law enforcement in several states has continued to arrest people transporting hemp.  Furthermore, in at least one decision in Idaho, a court determined that it was illegal to transport hemp.  USDA released the memo to explain its disagreement with such interpretations.

In its memo, USDA says that the language decriminalizing hemp in the 2018 Farm Bill was “self-executing,” so it is no longer illegal to possess hemp or THC from hemp. USDA further asserts that hemp grown under pilot programs allowed under the 2014 Farm Bill can be legally transported across state lines because the 2018 Farm Bill did not immediately repeal the pilot programs.  USDA argues that this means that the hemp grown under 2014 pilot programs is legally produced, can be legally possessed, and therefore can be legally transported across state lines under the new Farm Bill.  

It is important to note that USDA’s memo is meant as guidance to the states, and is legally persuasive, but not legally binding.  This means a person could theoretically still be arrested for transporting hemp through a state, and the courts may or may not uphold the state’s decision.  After the federal regulations under the 2018 Farm Bill are in place, however, there will be less wiggle room for states to carry out their own interpretations, which will likely but an end to this controversy. 

What does it all mean?

While the regulation of hemp products, the transportation of hemp, and the legality of hemp in certain states may still be in question, all of this activity means that the state and federal governments are attempting to work all the kinks out.  Over time, the rules regarding how to produce, process, sell, and transport hemp, will likely become more defined and clear.  In the meantime, those interested in legally growing and processing hemp will have to play a waiting game. 

Posted In: Crop Issues
Tags: hemp, industrial hemp, farm bill
Comments: 0
By: Evin Bachelor, Friday, May 10th, 2019

We might be in the middle of planting season, but it’s time for another harvest!  Here’s our latest gathering of agricultural law news that you may want to know:

Hemp bill completes third hearing in Ohio House committee.  The Agriculture and Rural Development Committee in the Ohio House of Representatives completed its third hearing regarding Senate Bill 57 on Tuesday.  The bill would decriminalize hemp produced under the regulatory system proposed in the bill.  The committee heard testimony from nearly two dozen individuals and organization representatives.  None of the witnesses gave testimony in opposition to the bill.  Nearly all of the testimony, including the testimony given on behalf of the Ohio Farm Bureau Federation and Ohio Chamber of Commerce, was offered in support of the bill.  The Ohio Farmers Union submitted testimony only as an “interested party” rather than as a “proponent,” saying that it supports the principle of hemp decriminalization, but does not believe that the hemp marketing program established in the current version of the bill would be necessary.  Click HERE to view the witness testimony regarding Senate Bill 57 on the Ohio General Assembly’s webpage.

Food and Drug Administration sets public hearing on cannabis in food and drinks.  The U.S. Food and Drug Administration has set May 31, 2019 as the date of its first hearing on whether to legalize the use of cannabis derived compounds like CBD in foods and drinks.  According to the Federal Register, the hearing is open to the public, and intended for the FDA to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling, and sale of products containing cannabis or cannabis-derived compounds.  The hearing will be held in Maryland on May 31st, but those wishing to submit written or electronic comments may do so until July 2nd.  Click HERE for more information from the Federal Register about the hearing.

Cattle ranchers file class action suit against major meatpacking companies.  The Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and six other named parties brought suit against major meatpackers, including Tyson Foods, JBS USA, Cargill, and National Beef Packing Company.  Filed in federal court in the Northern District of Illinois, the plaintiffs’ complaint alleges that these meatpackers colluded to suppress the price of fed cattle since at least 2015, and that as a result, the plaintiffs suffered significant economic harm from the deflated prices.  When companies agree to set prices for an industry, they engage in collusion, which could violate U.S. antitrust laws.  The 121 page complaint includes a number of charts, graphs, and visuals that explain the alleged economic manipulation, along with a thorough history of an alleged pattern of collusion.  If the federal judge certifies the class as requested, other cattle ranchers will have the choice of whether to be included in the class or not.  This is important in determining whether the unnamed members of the class are bound by a final decision or able to participate in any settlement or final award.  Click HERE to view the complaint and learn more about this lawsuit.

Indiana Right-to-Farm law upheld by Court of Appeals of Indiana.  When a federal court in North Carolina decided that that state’s right-to-farm law did not protect hog barns operated by Smithfield Foods in lawsuits alleging agricultural nuisance, there was concern that right-to-farm laws in the United States may be in trouble.  However, those fears have begun to subside in other states.  As we explained in a previous blog post, Ohio’s right-to-farm law provides greater protections from a nuisance lawsuit than North Carolina’s law.  Further, the Court of Appeals of Indiana recently upheld the use of Indiana’s Right to Farm Act.  In doing so, it upheld a lower court decision that granted summary judgment in favor of the defendant livestock operators.  At the start of the case, the plaintiffs alleged that the defendants created a nuisance, acted negligently, and caused a trespass when the defendants constructed and began to operate a new concentrated animal feeding operation in 2013.  However, the defendants cited Indiana’s Right to Farm Act as a defense and won.  The plaintiffs sought to challenge the constitutionality of the Indiana’s Right to Farm Act, but the appellate court found that the law was within the legislature’s proper authority, did not constitute a taking, and did not improperly set farmers apart for preferential treatment.  The original plaintiffs have a few more days to file an appeal with the Indiana Supreme Court.  Click HERE to read the appellate court’s opinion.

State of Washington passes cage-free egg production law.  Washington is set to join states like Massachusetts and California in requiring egg-laying hens to live free of cages.  Once signed into law by the governor, Substitute House Bill 2049 would require poultry operators to use a cage-free housing system that would allow hens to roam within the confined area by 2023.  Further, hens must be “provided enrichments that allow them to exhibit natural behaviors including, at minimum, scratch areas, perches, nest boxes, and dust bathing areas.”  Farm employees must be able to provide care while standing in the hens’ usable floor space.  The bill would also make it illegal to buy, sell, or transport eggs and egg products that were not produced in compliance with the state’s cage free egg production law.  The Humane Society of the United States spearheaded the legislative effort on this bill, which initially passed the Washington House of Representatives 90-6 and the Senate 40-6.  Click HERE for more information about the bill’s status, and HERE to read the final text of the bill.

Missouri legislature considers ending local regulation of CAFOs.  The Missouri General Assembly is considering a pair of bills that would 1) limit the ability of county commissions and health boards from imposing restrictions on confined animal feeding operations that are more stringent than state law, and 2) eliminate the authority of county commissions and health boards from inspecting livestock operations.  So far, each bill has passed one chamber of the Missouri General Assembly, and is being considered in the other chamber.  Supporters argue that the bills would provide for regulatory consistency across the state in light of varying local regulations.  Opponents argue that the bills would harm local jurisdictions from enacting restrictions that better protect the environment than current state law.  This debate is similar to recent and ongoing debates in states like Tennessee and Wisconsin over which entities can regulate confined animal feeding operations, and how much.  Click HERE for more information about Missouri’s Senate Bill 391, and HERE for more information about Missouri’s House Bill 951.

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

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

Tax

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

Real property

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

Estate planning

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

Local government

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

Regulation of Alcohol

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

Energy

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

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

Category

Bill No.

Bill Title

Status

Hemp

SB 57

Decriminalize hemp and license hemp cultivation

- Passed Senate

- Completed first committee hearing in House

Watershed Planning

SB 2

Create state watershed planning structure

- Referred to Senate Agriculture and Natural Resources Committee

Animals

HB 24

Revise humane society law

- Completed third committee hearing in House

Animals

HB 124

Allow small livestock on residential property

- Referred to House Agriculture and Rural Development Committee

Oil and Gas

HB 55

Require oil and gas royalty statements

- Completed first committee hearing in House

Oil and Gas

HB 94

Ban taking oil or natural gas from bed of Lake Erie

- Referred to House Energy and Natural Resources Committee

Oil and Gas

HB 95

Revise oil and gas law about brine and well conversions

- Referred to House Energy and Natural Resources Committee

Mineral Rights

HB 100

Revise requirements governing abandoned mineral rights

- Referred to House Energy and Natural Resources Committee

Regulations

SB 1

Reduce number of regulatory restrictions

- Completed three committee hearings in Senate

Business Law

SB 21

Allow corporation to become benefit corporation

- Passed Senate

- Completed first hearings in two separate House committees

Animals

SB 33

Establish animal abuse reporting requirements

- Completed fifth committee hearing in Senate

Local Gov’t

HB 48

Create local government road improvement fund

- Referred to House Finance Committee

Local Gov’t

HB 54

Increase tax revenue allocated to the local government fund

- Referred to House Ways and Means Committee

Property

HB 74

Prohibit leaving junk watercraft or motor uncovered on property

- Completed first committee hearing in House

By: Evin Bachelor, Friday, March 22nd, 2019

The Ohio Specialty Crop Registry connects producers of specialty crops, beekeepers, and pesticide applicators to one another through free online registries.  Producers of specialty crops and beekeepers may voluntarily report the boundaries of their specialty crops and beehives.  The registry then compiles this information in a mapping tool that also provides the contact information of the registrant.  In doing so, pesticide applicators are better able to avoid these areas and minimize spray drift.

The Old System: the Ohio Sensitive Crop Registry

The Ohio Department of Agriculture (ODA) first launched a registry for sensitive crops in 2014 so that pesticide applicators could know the locations of sensitive crops before spraying in a given area.  The registry came about at a time when widespread demand for organic foods required more farmers to closely monitor what came into contact with their crops.  The original tool allowed commercial producers of at least a half-acre of a single type of sensitive crop to register.  Sensitive crops included just about any non-row crop such as fruits, vegetables, and herbs.  Apiaries, outdoor aquaculture, brambles, certified organic farms, nurseries, greenhouses, and orchards also could be registered.

The New System: the Ohio Specialty Crop Registry

Now, ODA partners with FieldWatch, Inc. to operate the Ohio Specialty Crop Registry.  FieldWatch, Inc. is a non-profit organization that operates three registries: DriftWatch for producers of specialty crops, BeeCheck for beekeepers, and CropCheck for producers of row crops.  FieldWatch creates maps based on the information from these registries, and makes those maps available to pesticide applicators in another program called FieldCheck.  In summary, the three registries are for the producers and beekeepers, and FieldCheck is for the pesticide applicators.

Ohio currently only uses the DriftWatch and BeeCheck registries.  According to ODA, the list of sensitive crops under the old program is virtually the same under the new system, meaning that producers of any non-row crop may utilize DriftWatch.  While beekeepers may report the location of their beehives in DriftWatch, ODA recommends that beekeepers with no specialty crops use BeeCheck.

FieldWatch, Inc. continues to update its tools to add features and indicators, and CropCheck represents one such development.  New for 2019, this registry allows producers of row crops like corn, soybeans, and wheat to register their crops.  Its development comes on the heels of the introduction of dicamba-tolerant seeds.  Only Arkansas, North Carolina, Illinois, and Indiana have adopted CropCheck for 2019.  Ohio has not yet adopted it.

Connecting the Dots between the Registry and Liability

At this point you may be asking yourself, why is this in the ag law blog?  That’s a fair question, and the answer is simple: risk management.  As more farmers adopt organic practices, as pesticides and seeds change, and as weather patterns evolve, the risk increases that pesticide drift may come into contact with and negatively impact specialty crops and beehives.

The law expects people to act reasonably and to exercise due care at all times, and this default duty applies to pesticide applicators.  Common claims for drift include negligence, nuisance, and trespass.  Each of these claims examine whether the parties acted reasonably and with due care.  Most often, when a court decides that a pesticide applicator acted unreasonably, it is because he or she failed to apply the pesticide in a manner consistent with the label.  Following the label is certainly an expectation, but it is not the only thing a court will consider. 

When a pesticide applicator does not use FieldCheck, a perceptive attorney representing beekeepers and producers of specialty crops would likely argue that the use of FieldCheck is an industry standard.  If an attorney could establish this, then the failure to use FieldCheck would mean that a pesticide applicator failed to act in a reasonable manner and exercise due care.  While we have not seen an Ohio court consider this issue yet, as use of the program continues to grow, this argument will come to hold more weight when a case does arise.

When a pesticide applicator does use FieldCheck, he or she has a stronger argument that he or she acted in a reasonable manner.  FieldCheck provides pesticide applicators with a way to know exactly where registered sensitive crops and beehives are located, and allows the applicator to buffer accordingly.  FieldCheck provides a quick, cheap, and easy way to manage legal risk, alongside following the label.  Applicators who use the program may want to document when they used the program and also how the maps impacted their application plan.

These scenarios presume that the beekeeper or producer of specialty crops has registered the locations of their bees or crop with a FieldWatch registry.  When sued by a beekeeper or producer of specialty crops who did not register their locations, a pesticide applicator could use similar arguments as noted above in order to defend against the lawsuit.  However, the applicator’s focus would likely regard the lack of notice.  Again, these arguments alone would not likely determine the outcome of the case, but they would help the court determine whether the parties acted reasonably.

What about hemp?

Another question that some of our readers will also be asking is: which registry is for hemp?  We made a call and left a message with FieldWatch.  If or when hemp production becomes legal in Ohio, we’ll be sure to provide an update on which registry is proper for hemp.  Ohio’s hemp bill is on the move, and the Ohio Senate Agriculture & Natural Resources Committee completed its third hearing of the bill this week.  However, we can’t forget that growing hemp is not legal in Ohio unless and until the bill is passed into law and the regulatory system is created.

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