Written by Ellen Essman and Peggy Hall
The holidays are almost here, 2019 is almost over, but the world of ag law isn’t taking a break. From cannabidiol, to Ohio bills on water quality and wind power, to a cage-free egg law in Michigan, here’s the latest roundup of agricultural law news you may want to know:
FDA warns companies about cannabidiol products. If you’ve been following the hemp saga unfold over the past year, you know that the Food and Drug Administration (FDA) has been contemplating what to do with cannabidiol, or CBD from derived hemp products. In addition to manufacturing standards, FDA has also considered how CBD products are marketed and labeled. Although FDA has issued no official rules on CBD marketing and labeling, the agency has warned a number of companies that their marketing of CBD violates the Federal Food, Drug, and Cosmetic Act (FD&C Act). On November 25, FDA sent warning letters to 15 companies. FDA asserts that the companies “are using product webpages, online stores and social media to market CBD products in interstate commerce in ways that violate the FD&C Act.” In particular, FDA is apprehensive about those companies who market CBD products in ways that claim they can treat diseases or be used therapeutically for humans and animals. Since CBD has not been approved by FDA or found safe for these uses, companies cannot make such claims. You can see FDA’s news release for more information and for the list of companies.
It won’t be as difficult for financial institutions to serve hemp related businesses. Federal agencies and state bank regulators released a statement clarifying what is required of banks when hemp businesses are customers. Since hemp was removed from the federal list of controlled substances, banks no longer have to file a Suspicious Activity Report on every customer involved in growth or cultivation of hemp just because they grow hemp. This action will make it easier for those legally cultivating hemp to work with banks and obtain loans for their farms. For more information, the agencies’ press release is available here.
Ohio House considers the Senate’s water quality bill. Ohio’s House Energy & Natural Resources Committee held a hearing on Senate Bill 2 just last week. The bill would implement a Statewide Watershed and Planning Program through the Ohio Department of Agriculture (ODA). Under the bill, ODA would be charged with categorizing watersheds in Ohio and appointing coordinators for each of the watersheds. ODA and the coordinators would work closely with soil and water conservation districts to manage watersheds. Ag groups such as the Sheep Improvement Association, the Cattleman’s Association, the Pork Council, the Dairy Producers Association, and the Poultry Association testified in favor of SB 2.
Ohio House committee debates wind bill. The House Energy & Natural Resources Committee was busy last week—in addition to SB 2, they also discussed House Bill 401. In the simplest terms, if passed, HB 401 would allow townships to hold a referendum on approved wind projects. This means that with a vote, townships could overturn decisions made by the Ohio Power and Siting Board (OPSB). In the committee hearing, wind industry representatives argued that such a referendum would be harmful, since it would overturn OPSB decisions after companies have already spent a great deal of money to be approved by the Board. They also argued that the bill singles out the wind industry and does not allow referendums on other energy projects. Republican committee members signaled that they may be willing to revise the language of HB 401 to allow a referendum before OPSB decisions.
Iowa’s ag-gag law is paused. In May, we wrote about Iowa’s new ag-gag law, which was the state’s second attempt to ban undercover whistleblowers and journalists from secretly filming or recording at livestock production facilities. In response, numerous animal rights groups sued the state, claiming that the law unconstitutionally prevents their speech based on content and viewpoint. On December 2, the U.S. District Court for the Southern District of Iowa issued a preliminary injunction, which means that the state will not be able to enforce the ag-gag law while the lawsuit against it is being considered. The preliminary injunction can be found here.
Cage free eggs coming to Michigan in 2024. Michigan lawmakers recently passed Senate Bill 174, which, among other things, will require that all birds producing eggs both in and out of the state be housed in “cage-free” facilities by 2024. The cage-free facilities will have to allow hens to roam unrestricted with the exception of exterior walls, and some types of fencing to contain the birds. In an indoor facility, the farmer must be able to stand in the hens’ usable floor space while caring for them. In addition, the facilities must have enrichments for hens such as scratch areas, perches, nest boxes, and dust bathing areas. Michigan joins California, Oregon, Rhode Island, and Washington in banning non-cage-free eggs. Note that Michigan’s law will apply to Ohio egg producers who sell eggs to buyers in Michigan.
Case watch: hearing set in Lake Erie Bill of Rights case. The court has set a January 28, 2020 hearing date for the slow moving federal lawsuit challenging the Lake Erie Bill of Rights (LEBOR) enacted by Toledo voters in February. The hearing will likely focus on several motions to dismiss the case filed by the parties on both sides of the controversy, but Judge Zouhary indicated that he’ll set the agenda for the hearing prior to its date. Drewes Farm Partnership filed the federal lawsuit against the City of Toledo in February, claiming that LEBOR is unconstitutional and violates several Ohio laws. The State of Ohio was permitted to join the farm as plaintiffs in the case, but the court denied motions by Toledoans for Safe Water and the Lake Erie Ecosystem to join as defendants in the case. For more on the LEBOR lawsuit, refer to this post and this post. For our explanation of LEBOR, see this bulletin.
Stay tuned to the Ohio Ag Law Blog as we continue to track these and other developments in agricultural law through the holidays and beyond.
It’s been a while since we’ve written about the Lake Erie Bill of Rights (LEBOR). As a refresher, LEBOR was passed in February in a special election as an amendment to Toledo’s city charter. LEBOR was meant to create new legal rights for Lake Erie, the Lake Erie ecosystem, and to give Toledo citizens the ability to sue to enforce those legal rights against a government or a corporation violating them. For a longer explanation on LEBOR, see our post here. Since then, lawsuits for and against LEBOR have been filed, and the state of Ohio has passed legislation concerning the language in LEBOR. Updates on those actions will be discussed below.
Update on the Drewes Farm lawsuit
The day after LEBOR passed, Drewes Farm Partnership initiated a lawsuit in the U.S. District Court for the Northern District of Ohio, Western Division, against the city of Toledo. Our initial blog posts concerning this lawsuit are available here and here. In May, we discussed updates to the Drewes Farm lawsuit in yet another blog post. Since our last update, the Lake Erie Ecosystem and TSW’s motion to stay pending appeal and the appeal were both denied, meaning the Sixth Circuit agreed with the district court’s decision to leave the ecosystem and TSW out of the lawsuit. As a result, the current parties to the lawsuit are plaintiffs Drewes Farm Partnership and the State of Ohio, as well as the defendant City of Toledo. In early June, both the Drewes Farm Partnership and the state of Ohio filed motions for judgment on the pleadings. The district court has not yet determined whether to grant the motions; the City of Toledo’s response to the motions is due on August 9, 2019. After the response is filed, the plaintiffs will have a chance to reply.
Toledo Citizens file lawsuit against State of Ohio
In the midst of the Drewes Farm lawsuit, yet another complaint has been filed concerning LEBOR. On June 27, 2019, three citizens of Toledo filed a complaint against the state of Ohio in the Lucas County Court of Common Pleas. In the complaint, the citizens, who all voted for LEBOR, asked the court to find that the state has failed to address pollution in Lake Erie, and due to its inaction, circumstances in the lake are getting worse, that LEBOR is enforceable under the Ohio Constitution and state law, and to issue an injunction to prevent the state from curtailing their rights under LEBOR. Currently, it appears as though no response has been filed by the state of Ohio. Perhaps the state wants to let recently passed legislation do the talking.
State budget bill includes language aiming to invalidate LEBOR, adds water quality initiative
Finally, the Ohio General Assembly has also gotten in on the LEBOR action. On July 18, 2019, Governor DeWine signed the General Assembly’s budget bill into law. Page 482 contains language that seems to be aimed at LEBOR and other environmental community rights initiatives. Most importantly, the bill states:
- Nature or any ecosystem does not have standing to participate or bring an action in any court of common pleas.
- No person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas.
It will be interesting to see how courts handle lawsuits on behalf of ecosystems and nature after the passage of this budget law.
While the budget bill appears to take LEBOR and initiatives like it head-on, it also created a water quality initiative called “H2Ohio,” which includes a fund in the state treasury. The money in the H2Ohio fund will go toward water quality improvement projects, including projects to reduce phosphorus, nitrogen, and sediment pollution from agricultural practices. With this initiative, the state seems to be offering an alternative way to protect its waters, including Lake Erie.
Work continues on sorting out the legality of LEBOR and the wider problem of Lake Erie pollution, and there appears to be no end in sight. Keep an eye on the Ohio Ag Law Blog for new developments on LEBOR lawsuits and the H2Ohio program!
The OSU Extension Farm Office team has returned from the National Farm Business Conference in Wisconsin. We gained some fresh perspective on events beyond Ohio’s borders, but are happy to be back in slightly warmer weather. Our colleagues from across the nation presented on a variety of farm management topics, and we had a chance to discuss some of our recent projects. We also toured a number of dairy and agritourism farms, and of course ate lots of cheese curds. The fresh perspective means that it is time for a fresh Ag Law Harvest.
Here’s our latest gathering of agricultural law news that you may want to know:
OSU Extension Ag Law Team featured on Agronomy and Farm Management Podcast. Recently we had a chance to talk with OSU Extension Educators Amanda Douridas and Elizabeth Hawkins, who together moderate the bi-weekly Agronomy and Farm Management Podcast for OSU Extension. We discussed the status of Ohio’s hemp bill and what we expect to happen in the near future with hemp regulation and production. Then we provided an update on the Drewes Farm Partnership v. City of Toledo lawsuit, which grapples with the legality of the Lake Erie Bill of Rights. Click HERE to listen to the podcast, and look for episode 28.
Minnesota focuses new commercial nitrogen fertilizer regulations on drinking water quality. In an effort to protect public drinking water sources, the Minnesota Department of Agriculture has chosen to regulate the commercial application of fertilizer. The state has long regulated the application of manure, but not commercial nitrogen. The regulations focus on two types of geographic areas: regions with vulnerable soil (coarse soils, karst geology, or shallow bedrock) and farms located in Drinking Water Supply Management Areas. These management areas are designated based upon nitrate levels found in the drinking water. Starting in 2020, the state will ban the application of commercial nitrogen in these areas during the fall months and on frozen ground. Farms in any of the 30 Drinking Water Supply Management Areas would have to follow best management practices to start, but if nitrate levels continue to exceed state limits, then the state may impose additional restrictions in an area to reduce nitrogen pollution. For more information on Minnesota’s Groundwater Protection Rule, click HERE.
Federal court puts a hold on Bud Light’s “100 percent less corn syrup” ads. If they missed seeing it live during the Super Bowl, most people in the agricultural industry have at least seen the recent Bud Light advertising campaign that claims the beer uses no corn syrup while its competitors do. Shortly after the initial release of the ad, MillerCoors sued Anheuser-Busch, which makes Bud Light. MillerCoors wants a permanent injunction that would stop Bud Light from continuing its corn syrup advertising campaign, arguing that the advertisements are false and misleading to consumers. The first step to a permanent injunction is often a preliminary injunction, which makes a party act or not act in a certain way only while the case is pending. The judge presiding over the lawsuit granted MillerCoors’ motion for a preliminary injunction in part. The judge ordered Anheuser-Busch to temporarily stop using ads mentioning corn syrup if those ads do not contain language explaining that Bud Light does not use corn syrup in the brewing process. The judge’s act does not ban the ad that premiered during the Super Bowl. Rather it only blocks ads released later that claim Bud Light uses 100 percent less corn syrup than competitors like MillerCoors. Click HERE to view the complaint, and HERE to view the judge’s order.
It’s (mostly) official: USDA’s ERS and NIFA are headed to Kansas City. U.S. Secretary of Agriculture Sonny Perdue announced the USDA’s selection of the Kansas City, Missouri region as the new headquarters for the Economic Research Service and National Institute of Food and Agriculture. The location changed caused a great deal of controversy as some viewed it as a political move. However, the USDA has maintained that relocation will save millions of dollars over the next few years and put the agencies closer to a number of other USDA offices in Kansas City, such as the Farm Service Agency’s Commodity Operations Office. The Secretary reduced some of the controversy by scrapping plans to place the agencies under the USDA’s Chief Economist, who is a political appointee. Before we call the move a done deal, we must note that Congress could stop the plans. The U.S. House of Representatives might block the move via a Department of Agriculture-FDA spending bill currently under consideration. Click HERE to read Secretary Perdue’s press release.
Bayer announces multi-billion dollar hunt for glyphosate replacement. Somewhat buried in a press release titled “Bayer raises the bar in transparency, sustainability and engagement,” Bayer recently announced a substantial investment in its weed management research. Over the next ten years, the company plans to spend 5 billion euros, or roughly 5.6 billion U.S. dollars, to develop weed control products as alternatives to glyphosate. The announcement comes at a time with thousands of plaintiffs across the United States have claimed that the widely-used glyphosate caused their cancer. As we have previously discussed in the Ag Law Blog, the first three juries have in total awarded plaintiffs billions of dollars in damages. Bayer continues to fight the allegations and defend its product, but the press release marks the first time that Bayer has publically announced a search for an alternative to glyphosate. It remains to be seen whether the press release could have an impact in the lawsuits, but Bayer will likely try to keep the press release out of the trials by using court rules of evidence.
Ohio House passes amusement ride safety bill. County fair season has officially kicked off in Ohio, and some state lawmakers want to make sure that amusement rides at those fairs are safe. House Bill 189 seeks to heighten Ohio’s amusement ride safety inspection standards and impose additional duties on amusement ride owners. The bill would require the Ohio Department of Agriculture to adopt ride classification rules that identify types of rides needing more comprehensive inspection, along with the minimum number of inspectors and number of inspections for each ride. Further, the bill would require amusement ride owners to keep a manual for each amusement ride, and make it available upon request of an inspector. Amusement ride owners would also have to keep records, including documents and photographs, of all major repairs along with all locations where the owner stored or operated each ride. The bill includes an emergency clause, which would allow it to take effect as soon as the Governor signs it. Lawmakers named the bill “Tyler’s Law” after the young man who died following an equipment breakdown at the Ohio State Fair in 2017. Click HERE for more information about the bill.