The final day of April is already here! Spring feels like it has finally arrived and planting season is in motion across Ohio. Just like farmers in the field, legislatures, government bodies, and courts across the country are hard at work addressing critical agricultural and resource law issues. We've gathered a collection of those issues for this Ag Law Harvest.
Debt relief for socially disadvantaged farmers is in the works. The USDA has announced its plans for implementing debt relief to socially disadvantaged producers mandated by the American Rescue Plan Act of 2021 that Congress passed in March. The payments will be 120% of any outstanding Farm Service Agency Direct and Guaranteed Farm Loans and Farm Storage Facility Loans held by a socially disadvantaged farmer on January 1, 2021. The additional 20% on top of the loan balance is for tax liabilities associated with the payment, as it will be considered income. For purposes of this debt relief program, a “socially disadvantaged producer” is one who is Black or African American, American Indian, Alaskan Native, Hispanic or Latino, Asian American or Pacific Islander. A producer must indicate the identification on the Customer Data Worksheet, USDA Form AD-2047, filed with the FSA. Producers who fit into the socially disadvantaged producer definition can update those forms now with the local FSA office. No other action by a producer who is eligible for the debt relief is necessary, as the FSA will notify producers of the payoff process as it occurs. For more information, visit this webpage for the USDA’s American Rescue Plan Debt Payments.
Missouri’s Truth in Labeling Law. In 2018, Missouri enacted a law making it a criminal offense to “misrepresent a product as meat that is not derived from harvested production livestock or poultry.” Violators could potentially face up to one year in prison and/or a fine up to $2,000.00. Shortly after the law went into effect, Turtle Island Foods Inc., a business that makes Tofurky (an alternative meat product) and advocacy groups such as the Animal Legal Defense Fund (collectively the “Plaintiffs”), filed a lawsuit challenging Missouri’s law on the grounds that the law violated the U.S. Constitution including the Free Speech Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Dormant Commerce Clause. The district court denied Plaintiffs’ request for an injunction determining that Missouri’s law only prohibits companies from misleading consumers. Plaintiffs then appealed to the federal circuit court. Last month the Eighth Circuit Court issued its opinion and agreed with the district court. However, the Eighth Circuit noted that the facts of this specific case did not support overturning Missouri’s law, but that facts and circumstances of another case may provide otherwise. As it stands, Missouri’s law remains in full force and effect.
Renewable Fuel Standard deadlines extended. The EPA issued its final rule extending deadlines for obligated parties to comply with Renewable Fuel Standard deadlines for 2019 and 2020. Under the extension, small refineries must submit 2019 compliance forms by November 30, 2021, and their associated attest engagement forms by June 1, 2022. For 2020, obligated parties must submit their compliance documents by January 31, 2022, and their associated attest engagement reports by June 1, 2022. Lastly, the EPA extended the deadline for obligated parties to submit attest engagement reports for 2021 to September 1, 2022, the deadline for 2021 compliance documents remains unchanged.
Ohio man sentenced for stealing grain. How often do you hear of farmers being victims of theft and a criminal on the run? Well, last month an Ohio man was sentenced to one year in prison and 5 years of probation after stealing over $94,000.00 in harvested grain. The defendant took his employer’s gravity wagon full of grain and sold it to a local co-op in Ashland County under false pretenses. After the theft was discovered, the defendant fled from Ohio, eventually having to be extradited from New Mexico. This case demonstrates just how vulnerable farmers are to potential crimes. For more information on intentional harm to farm property and your rights, check out our law bulletin.
Iowa passes agricultural trespass law. Iowa lawmakers have recently passed a new law that will make certain types of trespass on Iowa farms a criminal offense in an effort to stop animal activists and others from secretly documenting activities. House File 775 makes it illegal to take soil or water samples and samples of an animal’s bodily fluids or other byproducts. Additionally, the law makes it a crime to place or use a camera on the farm property without the owner’s consent. Proponents of the law argue that such laws are necessary to protect private property rights and prevent bioterrorism. Opponents of the bill are expected to challenge the law on First Amendment grounds.
USDA discussing current issues surrounding shipping U.S. agricultural exports. USDA had a meeting with the U.S. Department of Transportation and agricultural stakeholders to discuss the challenges of exporting U.S. agricultural products. Challenges arose in the fall of 2020 and have only continued to get worse. With the resurgence of international trade, nearly every sector of the supply chain has been under stress, including warehousing, trucking, rail service, container availability, and vessel service. Farmers have long struggled with finding a market for their products and getting a fair price for their work. With worldwide markets opening back up, the USDA and the Department of Transportation are hard at work trying to ensure that U.S. farm products reach consumers across the globe.
Farmers to Families Food Box program to end May 31, 2021. As part of the Coronavirus Food Assistance Program announced in April 2020, the Farmers to Families Food Box program was designed and implemented as a temporary relief effort to purchase produce, dairy, and meat products from American farmers and distribute these products in family-sized boxes to Americans in need. In a letter to stakeholders, the USDA announced that due to the improving economy and the access food insecure Americans have to expanded federal nutritional programs like SNAP, WIC, P-EBT, and more, the need for the Farmers to Families Food Box program no longer exists. The USDA also stated that the lessons learned from the Farmers to Food Box program will continue to be implemented in current and future programs. The USDA has already begun to offer a fresh produce box on a temporary basis through The Emergency Food Assistance Program (TEFAP) and is in the process of designing a Dairy Donation Program to facilitate the timely donation of dairy products to nonprofit organizations that distribute food to persons in need and to help prevent and minimize food waste.
Grant program to enhance the waters of Lake Erie. The Ohio Department of Agriculture (ODA) has announced that the USDA has awarded ODA’s Division of Soil and Water Conservation a five-year, $8-million grant to help improve the water quality in Lake Erie. The program will reinforce Governor Mike Dewine’s H2Ohio initiative by assisting farmers in developing nutrient management plans and conservation practices. The grant will be available to farmers in Crawford, Erie, Huron, Marion, Ottawa, Richland, Sandusky, Seneca, Shelby, and Wyandot counties. Farmers can start applying for the program through their local soil & water district office later this summer.
Radio Frequency Identification (RFID) tags replacing the branding iron? Last year the USDA’s Animal and Plant Health Inspection Service proposed to approve a rule that would require using RFID eartags for use on cattle that move across state lines. While the rule has not yet been finalized, the proposed rule, which is supposed to take effect January 2023, has not been free of controversy. The USDA believes the use of a RFID tag will provide the cattle industry with the best protection against the rapid spread of animal diseases. Some farmers, on the other hand, feel they should be able to use currently approved methods to maintain their cattle. To fight for their right, the Ranchers Cattlemen Action Legal Fund (R-CALF) has filed a lawsuit in a Wyoming Federal Court on behalf of some Wyoming cattle producers. R-CALF argues that the USDA has improperly used advisory committees to create new rules in violation of the Administrative Procedure Act and the Federal Advisory Committee Act. Essentially, R-CALF argues that neither the USDA nor its subcommittees followed correct procedure as required by federal law in order to create this proposed RFID rule. R-CALF seeks to prevent the USDA from using the recommendations obtained from the subcommittees in violation of federal law and in its place ask the court to require the USDA to revisit the RFID eartag issue with subcommittees that are compliant with federal law.
All farm employees are set to receive overtime pay in the state of Washington. Last November the Washington Supreme Court ruled that Washington’s exclusion of dairy workers from overtime pay was in violation of the state’s constitution. Since the Washington Supreme Court ruling, several class-action lawsuits were filed against Washington dairy farmers for unpaid overtime hours, threatening to wipe out the Washington dairy industry. Fearing the worst, Washington legislators worked diligently to pass Senate Bill 5172 ending the overtime exemption for all of agriculture and to make the transition for agricultural employers as smooth as possible. The prevents lawsuits for unpaid overtime from being filed after the Washington Supreme Court decision and to phase in overtime in the agriculture industry. Beginning in 2022, agricultural employees will be paid overtime for time worked over 55 hours in any one workweek and by 2024, employees shall be paid overtime for any time worked over 40 hours in any one workweek. Senate Bill 5172 awaits the Washington Governor's signature.
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!
Written by: Ellen Essman and Peggy Hall
October is almost over, and while farmers have thankfully been busy with harvest, we’ve been busy harvesting the world of ag law. From meat labeling to RFS rules to backyard chickens and H-2A labor certification, here’s our latest gathering of agricultural law news you may want to know:
Federal judge upholds Missouri’s meat labeling law—for now. Missouri passed a law in 2018, which among other things, prohibited representing a product as “meat” if it is not derived from livestock or poultry. As you can imagine, with the recent popularity of plant-based meat products, this law is controversial, and eventually led to a lawsuit. However, U.S. District Judge Fernando Gaitan Jr. decided not issue a preliminary injunction that would stop the Missouri Department of Agriculture from carrying out the labeling law. He reasoned that since companies like Tofurky, who brought the suit, label their products as plant-based or lab-grown, the law does not harm them. In other words, since Tofurky and other companies are not violating the law, it doesn’t make sense to stop enforcement on their account. Tofurky, the American Civil Liberties Union, and the good Food Institute have appealed Judge Gaitan’s decision, asserting that Missouri’s law infringes upon their right to free speech. This means that the Missouri law can be enforced at the moment, but the decision is not final, as more litigation is yet to come.
Oregon goes for cage-free egg law. In August, Oregon passed a new law that would require egg-laying chickens, turkeys, ducks, geese, or guinea fowl to be kept in a “cage-free housing system.” This law will apply to all commercial farms with more than 3,000 laying hens. A cage-free housing system must have both indoor and outdoor areas, allow the hens to roam unrestricted, and must have enrichments such as scratch areas, perches, nest boxes and dust bathing areas. As of January 1, 2024, all eggs sold in the state of Oregon will have to follow these requirements for hens. The law does allow hens to be confined in certain situations, like for veterinary purposes or when they are part of a state or county fair exhibition.
City can ban backyard chickens, says court. The Court of Appeals for Ohio’s Seventh District upheld the city of Columbiana’s ordinances, which ban keeping chickens in a residential district, finding that they were both applicable to the appellant and constitutional. In this case, the appellant was a landowner in Columbiana who lived in an area zoned residential and kept hens in a chicken coop on his property. The appellant was eventually informed that keeping his hens was in violation of the city code. A lawsuit resulted when the landowner would not remove his chickens, and the trial court found for the city. The landowner appealed the trial court’s decision, arguing that he did not violate the city ordinances as they were written, and that the city applied the ordinances in an arbitrary and unreasonable way because his chickens did not constitute a nuisance. Although keeping chickens is not explicitly outlawed in Columbiana, the Court of Appeals for Ohio’s Seventh District found that reading the city’s zoning ordinances all together, the “prohibition on agricultural uses within residential districts can be inferred.” Furthermore, the court pointed out that the city’s code did not ban chickens in the whole city, but instead limited them to agricultural districts, and that the prohibition in residential areas was meant to ensure public health. For these reasons, the court found that the ordinances were not arbitrarily and unreasonably applied to the appellant, and as a result, the ordinances are constitutional. To read the decision in its entirety, click here.
EPA proposes controversial Renewable Fuel Standard rule. On October 15, EPA released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the Renewable Fuel Standard (RFS) program in 2020. The RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels. Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane. In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners. The administration promised a fix to this in early October, but many agricultural and biofuels groups feel that EPA’s October 15 proposed rule told a different story. Many of these groups are upset by the proposed blending rules, claiming that way the EPA proposes calculate the biofuel volumes would cause the volumes to fall far below what the groups were originally promised by the administration. This ultimately means the demand for biofuels would be less. On the other hand, the EPA claims that biofuels groups are misreading the rule, and that the calculation will in fact keep biofuel volumes at the level the administration originally promised. The EPA plans to hold a public hearing on October 30, followed by a comment period that ends November 29, 2019. Hopefully the hearing and comments will help to sort out the disagreement. More information is available here, and a preliminary version of the rule is available here.
New H-2A labor certification rule is in effect. The U.S. Department of Labor has finalized one of many proposed changes to the H-2A temporary agricultural labor rules. A new rule addressing labor certification for H-2A became effective on October 21, 2019. The new rule aims to modernize the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers. An employer may advertise their H-2A job opportunities on a new version of the Department’s website, SeasonalJobs.dol.gov, now mobile-friendly, centralized and linked to third-party job-search websites. State Workforce Agencies will also promote awareness of H-2A jobs. Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.
And more rules: National Organic Program rule proposals. The USDA has also made two proposals regarding organic production rules. First is a proposed rule to amend the National List of Allowed and Prohibited Substances for organic crops and handling. The rule would allow blood meal made with sodium citrate to be used as a soil amendment, prohibit the use of natamycin in organic crops, and allow tamarind seed gum to be used as a non-organic ingredient in organic handling if an organic form is not commercially available. That comment period closes on December 17, 2019. Also up for consideration is USDA’s request to extend the National Organic Program’s information collection reporting and recordkeeping requirements, which are due to expire on January 31, 2020. The USDA’s Agricultural Marketing Service specifically invites comments by December 16, 2019 on: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Great Lakes restoration gets a boost from EPA. On October 22, 2019, the EPA announced a new action plan under the Great Lakes Restoration Initiative (GLRI). The plan will be carried out by federal agencies and their partners through fiscal year 2024. Past GLRI action plans have removed environmental impairments on the lakes and prevented one million pounds of phosphorus from finding its way into the lakes. The plans are carried out by awarding federal grant money to state and local groups throughout the Great Lakes, who use the money to carry out lake and habitat restoration projects. Overall, the new plan’s goals are to remove toxic substances from the lakes, improve and delist Areas of Concern in the lakes, control invasive species and prevent new invasive species from entering the lakes, reduce nutrients running off from agriculture and stormwater, protect and restore habitats, and to provide education about the Great Lakes ecosystem. You can read EPA’s news release on the new plan here, and see the actual plan here. We plan to take a closer look at the plan and determine what it means for Ohio agriculture, so watch for future updates!