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Board nears completion of standards for farm animal care

The Ohio Livestock Care Standards Board accepted an enormous task nearly a year ago when charged with the responsibility of developing rules for the care and well-being of livestock in Ohio.  Since that time, the board has proposed numerous standards on topics ranging from euthanasia to housing.  To date, two sets of the board's standards have completed the rulemaking process and are now effective.  Several others await either final approval by the board or review by the Ohio legislature's Joint Committee on Agency Rule Review (JCARR).  The following summarizes the board's progress.

1.  Livestock care standards developed by the board that became effective on January 20, 2011 include:

  • Euthanasia.  The standard outlines acceptable euthanasia methods for each species of livestock, and provides guidelines for use of each method of euthanasia.  See the final regulation in the Ohio Administrative Code, Section 901:12-1.
  • Civil penalties.  The rule establishes penalties and a notification procedure for violations of the livestock care standards.  Violations range from minor--punishable by a penalty of up to $500 for a first offense and $1,000 for subsequent offenses within 60 months of the first--to major--punished by a civil penalty of $1,000 to $5,000 for a first offense, and $5,000 to $10,000 for each subsequent offense within 60 months of the first.  A major violation is one that imperils the animal’s life or causes protracted “disfigurement,” “health impairment,” or “loss or impairment of the function of a limb or bodily organ.”  See the final rule at OAC Section 901:12-2.

2.  Livestock care standards submitted by the board and awaiting final review by JCARR:

  • General considerations for the care and welfare of livestock.  Establishes general management requirements for all livestock, including  feed and water, management, health and transportation.  Key provisions in this standard:
    • Housing, equipment and handling facilities must minimize bruises and injuries.
    • Restraints must be minimal. 
    • Handling devices must be humane.  Electric prods are permissible if hand held, battery powered and 50 volts or less, but may not be used on poultry, equine, alpacas, llamas, calves weighing less than 200 pounds, pigs weighing less than 35 pounds, on sensitive areas or on non-ambulatory disabled animals.    
    • Malicious or reckless throwing, dragging or dropping of an animal is prohibited, but minimal dragging  of a disabled animal may occur in certain circumstances. 
    • Picking up or carrying an animal by its ears or tail is prohibited, as is pulling an animal's legs in positions or directions that cause distress to the animal.
    • Animals must be monitored regularly and steps must be taken when evidence of disease, injury, or parasites is present. 
    • A “Veterinary-Client-Patient-Relationship” is necessary to obtain and administer prescriptive drugs to livestock. 
    • Health and medical practices must be performed humanely. 
  • Disabled and Distressed Livestock.  The proposed rule sets forth standards of care for distressed and disabled livestock, including disabled "downer" livestock, which the rule refers to as "non-ambulatory disabled" animals.  Action must be taken to address an animal's situation, either by caring for, monitoring, treating, transporting, slaughtering or euthanizing the animal.  The rule prohibits loading a disabled, non-ambulatory animal for transport to a non-terminal market or collection facility.  If a disabled or distressed animal is at a non-terminal market or collection facility and there is no option for immediate sale, standards of care must be provided or the animal must be released or euthanized.  The owner must keep records of treatments, medications and withdrawal times. 

3.  Standards in draft form and currently open to public comment include:

  • Standards for Individual Species.   In addition to the general consideration standards for all livestock, the board has proposed individual standards for goats, sheep, turkeys, poultry, swine, beef, dairy, veal, equine, alpacas and llamas.  The individual standards address unique needs and issues regarding feed and water, management and transportation for each specie.  Key issues addressed in the individual standards include:
    • Providing newborns with colustrum or colustrum replacement within the first 24 hours.
    • Standards for pen sizes, housing materials, lighting, air circulation, breeding and birthing pens and outdoor pens.  Of interest in these standards:
      • Restrictions on the use of gestation crates for swine after December 31, 2025.
      • For new farms not in existence on the rule's effective date, prohibition of conventional poultry battery cages that do not provide areas for nesting, scratching, perching or bathing.
    • Management of groups of animals.
    • Standards for tethering, dehorning, castrating, shearing, induced molting, tail docking and treatment of tusks, beaks, teeth, hooves and toes.  Of particular interest in these standards:
      • Restrictions on tethering and requirements for group housing of veal calves after December 31, 2017.
      • Beginning January 1, 2018, tail docking of dairy cattle may occur only if medically necessary and performed by a licensed veterinarian.

To review the standards and the status of the work by the Ohio Livestock Care Standards Board, visit this website.

A bill introduced in the Ohio House of Representatives proposes a complete repeal of the Ohio estate tax.  Representatives Grossman and Hottinger introduced H.B. 3 on January 11, 2011. The bill is simple:  it amends the estate tax provisions currently in Ohio law to state that the tax provisions apply only to estates of persons who died before January 1, 2011. Regardless of when the bill would become effective, persons dying after January 1, 2011 would not be subject to the estate tax. The bill also removes the estate tax return filing requirement for estates of persons dying after the January 1, 2011 date. 

The Ohio estate tax is a graduated tax on a person's gross taxable estate, less deductions and exemptions.  An estate valued at less than $338,333 pays no tax due to credits and exemptions included in the law.  Estates between the value of $338,334 and $500,000 pay a 6% estate tax while estates over $500,000 in value owe a 7% estate tax.  The state receives 20% of the estate tax revenue and the local government of the decedent's residence receives the remaining 80% of the tax.  Ohio is one of 17 states that have an estate tax.

How is agriculture affected by the Ohio estate tax?  It's not uncommon for a farm estate to be valued at the taxable threshold of $338,334.  However, qualifying farm properties that elect the special use valuation option in the estate tax law can further reduce the taxable amount of the estate up to an additional $500,000.  The special use valuation election provides that qualifying farmland will be valued at the lesser Current Agricultural Use Valuation amount; qualifications for the election relate to keeping the farm in the family.  Sound planning and proper use of special use valuation thus can reduce the Ohio estate tax burden for farms that intend to continue the farm business after the loss of an active farm family member.

The idea to repeal the estate tax is not a new one; several prior attempts have not met with success.  A bill identical to current H.B. 3 was proposed last year, but the bill never made it out of the House Ways and Means committee.   Will the change in Ohio's elected officials yield different results?  The current House Ways and Means committee will hear sponsor testimony on the H.B. 3 at its hearing on January 26, 2011.View H.B. 3 here.

In an attempt to satisfy the animal welfare agreement negotiated last year with the Humane Society of the United States and various agricultural interests, Governor Strickland yesterday authorized an emergency rule that restricts the possession, sale and transfer of certain wild animals in Ohio.  The controversial animal welfare agreement, designed to prevent another Ohio ballot initiative on farm animal welfare,  provided that "[t]he Ohio Department of Agriculture and the Ohio Department of Natural Resources will coordinate and take action on wild and dangerous animals including the prohibition of the sale and/or possession of big cates, bears, primates, large constricting and venomous snakes and alligators and crocodiles.  Existing owners will be grandfathered in, but they could not breed or obtain new animals."  The Governor's action, however, is a week shy of the December 31, 2010 deadline included in the agreement, which stated that failure to implement the wild and dangerous animals provision by such date could void  the agreement. 

 "This action fulfills my responsibilities within the agreement that will keep Ohio's vital agriculture industry profitable while appropriately updating animal care standards," said Governor Strickland.  The Governor also cited public safety reasons for the new regulation, stating that "[t]his rule will help protect Ohioans from deaths and serious injuries caused by attacks from dangerous wild animals held in private ownership."

The Governor's Executive Order suspended the regular rulemaking process and allowed the immediate adoption of Rule 1501:31-19-05 by the Department of Natural Resources Divison of Wildlife.  The new rule, which became effective January 6, 2011, does the following:

  • Prohibits the possession, sale and transport of "restricted species,"  which includes coyotes, timber and gray wolves, lions, tigers, jaguars, panthers, leopards, cheetahs, bobcats, lunx, cougars, pumas, mountain lions, bears, all primates except humans, alligators, crocodiles, caimans, gharials and numerous snake species, including pythons, cobras and rattlesnakes.
  • Creates an exception from the regulation for persons who possessed a restricted species prior to January 6, 2011, if the person meets all of the following criteria:
    • Does not acquire any new restricted species through purchase, gift, trade, barter, donation or breeding;
    • Has not been convicted of animal abuse or neglect;
    • Has not had any type of animal license or permit revoked or suspended;
    • Registers the animal by May 1, 2011 with the Ohio Department of Natural Resources and maintains the registration annually;
    • Does not allow the public to come into physical contact with the animal;
    • Does not sell or transfer the animal to anyone other than an accredited zoo or institution, a wildlife sanctuary, a family member approved by the division chief, or an out-of-state facility (until January 1, 2016) and notifies the division chief of the new recipient of the animal at least 72 hours prior to transfer.
    • Maintains a permanent transponder implant on the animal.
  • Creates an exception from the rule for certain facilities and organizations:
    • Institutions accredited by the association of zoos and aquariums and facilities under active contract for a species survival plan under the Endangered Species Act;
    • Circuses licensed by the U.S. Department of Agriculture that are in the state less than 45 days per year and do not allow the public to come into physical contact with the restricted species;
    • Institutions operating a mascot program licensed by the U.S. Department of Agriculture;
    • Non-profit wildlife sanctuaries that do not use restricted species for commercial or entertainment purposes, do not allow the public to come into contacted with the species, and do not breed the species.
    • Wildlife rehabilitation facilities engaged in the rehabilitation and reintroduction of native species and permitted by the division chief;
    • Education, research and scientific institutions or projects permitted by the division chief;
    • A person transporting a legally owned restricted animal through the state for less than 48 hours who does not exhibit the animal, keeps the animal enclosed and does not allow public contact with the animal.
  • Requires a person who possesses a restricted species to notify the division of wildlife if the animal escapes, in addition to complying with other reporting requirements in ORC 2927.21.

Emergency rules remain in effect in Ohio for 90 days, which should provide the agency sufficient time to extend the life of the rule through the regular rulemaking process.  Given the upcoming change of leadership in Ohio,  it will be interesting to see if the new administration follows Governor Strickland's lead and makes the new regulation permanent.

View the Governor's Executive Order and the new rule.

Program revisions include new rules to address manure impacts on Ohio lakes

The Ohio Department of Natural Resources (ODNR) will hold a public hearing next week for its proposed revisions to the Ohio Agricultural Pollution Abatement Program,  a water quality program that encourages voluntary actions to manage water pollution impacts from agricultural and silvicultural land uses, provides cost-sharing for agricultural pollution prevention, and allows ODNR to take measures against those who do not voluntarily address an agricultural pollution problem.  For purposes of the program, "agricultural pollution" is the failure to use appropriate practices in farming or silvicultural operations  to abate soil erosion or water quality impacts caused by animal waste or soil sediments.  Local Soil and Water Conservation Districts are initially responsible for implementing the program, with final oversight and enforcement authority held by ODNR's Division of Soil and Water Resources.

The rule revisions come partially as a result of the agency's mandatory five-year review of the program.   However, several new rules--undoubtedly the most controversial proposals--are in response to the high blue-green algae levels  in Grand Lake St. Mary's and other Ohio lakes this past summer.  Studies indicate that manure is one of the contributors to the proliferation of the blue-green algae.  A plan of action to improve the lake's water quality developed in July by ODNR, the Ohio Department of Health and the Ohio EPA proposed several actions related to manure management, including these new rules for the Agricultural Pollution Abatement Program:

  • Declaration of a "watershed in distress."    The rule would give the chief of ODNR's Division of Soil and Water Resources, with the approval of the Ohio Soil and Water Conservation Commission, the authority to declare a "watershed in distress" where the watershed has aquatic life and health that is impaired by nutrients or sediment from agricultural land uses and where there is a threat to public health, drinking water supplies, recreation, or public safety and welfare.  
  • Pollution minimization in distressed watersheds.   The  distressed watershed designation requires all owners, operators and persons responsible for land application of manure in the watershed to minimize pollution by following applicable standards, methods or management practices; failure to do so is a program violation, regardless of whether pollution actually results from the failure.  
  • Land applications of manure in distressed watersheds.  After a watershed remains designated "in distress" for more than two years, the rule places restrictions on land applications of manure, including required prior approval from the state for applications between December 15 and March 1, injection or incorporation for manure applied to  frozen or snow pack ground before December 15 or after March 1 and limitations on applications during certain types of weather.  Additionally, all owners and operators in the distressed area must maintain 120 days of manure storage.
  • Nutrient management plans in distressed watersheds.  Each owner, operator or person responsible for producing, applying or receiving more than 350 tons or 100,000 gallons of manure annually in a distressed watershed must develop a nutrient management plan as specified by the regulations.

In response to the proposed new rules, the Ohio Farm Bureau has already indicated that, while it supports the general intent to address water quality issues in Grand Lake St. Marys, it is concerned that the distressed watershed provisions are too vague and may exceed ODNR's scope of authority.  The legislature originally granted ODNR's authority for the Ohio Agricultural Pollution Abatement Program in Ohio Revised Code Chapter 1511.  Interestingly, in the joint plan of state actions for water quality improvement at Grand Lake St. Mary's, the state agencies admitted that they were asking the Ohio General Assembly to support "additional state regulatory authority" by way of approval of the proposed rule revisions by the legislature's Joint Committee on Agency Rule Review (JCARR).  Whether this additional authority exceeds the scope of authority originally granted by the Ohio legislature is a question that JCARR will address in its review of the proposed rules.

The remaining proposed revisions to the agricultural pollution abatement program regulations intend to address a need for more rapid handling of pollution situations as well as problems identified through a program review conducted last year by an appointed advisory committee.   Other revisions in the rules package  include:

  • The inclusion of manure applicators as parties responsible for land application of manure, in addition to the current rule's allocation of responsibility for the owners or operators of animal feeding operations. 
  • A number of changes designed to create more flexibility and efficiency in program oversight and administration by allowing earlier involvement of the Division of Soil and Water Resources.
  • An increase of cost share monies to a maximum of $30,000 and expansion of the types of practices eligible for cost-sharing;
  • A change throughout the rules from "animal waste" to "manure," which includes animal excretia, discarded products, process waste water, process generated waste water, waste feed, silage drainage, and compost products from mortality composting, on farm biodigerster operations or animal excretia composting. 
  • Required facility modifications where seepage of animal manure occurs.
  • Changing "concentrated animal feeding operations" to "animal feeding operations" throughout the rule and clarifying that the program does not apply to facilities regulated through the state's Livestock Environmental Permitting Program or NPDES permit program.

The ODNR has posted the rules package and supporting materials on its website.  The public hearing for the rules proposal will take place on November 8, 2010.

The Ohio Livestock Care Standards Board has proposed civil penalty provisions for violations of the livestock care standards currently under development by the Board.  The proposal addresses notification procedures for the Ohio Department of Agriculture (ODA), the agency responsible for enforcing the standards, and establishes two types of violations of the livestock care standards:  minor violations and major violations.  

A minor violation is one which violates the standards due to neglect or unintentional acts of substandard practices, but which does not place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function.  For a minor violation, the ODA may fine the offender up to $500 for a first offense and up to $1,000 for a subsequent offense committed within 60 days of a previous offense. 

A major violation is one which does place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function, or a violation that results in unjustifiable infliction of pain due to reckless or intentional acts.   The ODA may issue a penalty between $1,000 and $5,000 for a first major violation and between $5,000 and $10,000 for repeat violations committed within 60 days of a prior offense.    For major violations, the department may assist with the provision of care services for the animals and may assess the violator for the costs of providing proper care to the animals.

For both minor and major violations, the department may also seek recovery costs for investigations that result in penalties, including salary costs for employees directly involved in the investigation.  The rule also states that a violation affecting more than one animal may be considered one offense of the standards.

The Director of the Ohio Department of Agriculture has posted the proposed civil penalty provisions for public comment on ODA’s website.  The comment period runs until November 2.

Proposed rule addresses standards for farm animal euthanasia

The Ohio Livestock Care Standards Board has developed its first set of proposed standards regarding farm animal welfare, pursuant to the constitutional amendment passed last year by Ohio voters as Issue 2 (see our earlier posts on Issue 2).  The Livestock Care Standards Board unanimously approved standards regarding euthanasia of farm animals on October 5, 2010.   The ODA will now carry the Board's proposed standards through the administrative rulemaking process.

The proposed standards define acceptable methods of euthanasia, which includes inhalant agents, injectable agents, captive bolt guns, blunt force, gunshot, cervical dislocation, decapitation, electrocution, foam hypoxia, maceration and exsanguination.  The proposal establishes different acceptable methods and guidelines for different species, which includes equine, poultry, swine, cattle, goats, sheep, alpaca and llamas.  Provisions also address general considerations for performing euthansia, such as euthanization of animals unlikely to recover from illness or injury, determination of death, unsuccessful euthanasia, disposal of animals and mass euthanasia.  The rule references a civil penalty provision for violations, but the actual civil penalty provision is still under development by the Board.

Interesting to note is how the proposed euthanasia rule relates to the animal welfare agreement entered into last June by the State of Ohio, Humane Society of the United States, Ohio Farm Bureau and several other agricultural organizations.  Regarding euthanasia, the animal welfare agreement states:

"Recommendations will be made to The Ohio Livestock Care Standards Board (OLCSB) to take action on issues related to downer cattle and humane euthanasia using language consistent with the proposed ballot initiative."

The proposed ballot initiative referred to in the animal welfare agreement is the HSUS-led initiative that could have been on the upcoming November ballot, but was pulled as part of HSUS's compromise in the animal welfare agreement.  The ballot initiative proposed amending the Ohio Constitution to include this language on euthanasia:

"Require a farm owner or operator to  ensure that all on-farm killing of cows or pigs be performed in a humane manner using methods explicitly deemed “Acceptable” by the American Veterinary Medical  Association.  This standard shall also include a prohibition on strangulation of cows and pigs as a form of euthanasia."

Note that the animal welfare agreement does not require the adoption of the ballot initiative language in the euthanasia standards; it states only that "recommendations will be made" to the Board to take action using language consistent with the proposed ballot language.  A review of the record available on the Board's website does not indicate whether any party to the animal welfare agreement made such recommendations to the Board.  The Board had already begun working on the euthanasia standards prior to the announcement of the animal welfare agreement in June.  A review of the Board's proposal, however, indicates that the euthanasia standards do not precisely duplicate the HSUS's proposed ballot language.  The standards don't include a specific prohibition against strangulation of cows and pigs.  Instead, the standards do not list strangulation as an acceptable method of euthanasia.  Nor do the standards specifically reference the American Veterinary Medical Association (AVMA) acceptable standards; but many of the Board's acceptable standards are similar to AVMA acceptable standards.  Whether or not recommendations were made to the Board as promised in the animal welfare agreement, the Board's proposed euthanasia standards do appear to be "consistent with" the ballot initiative language on euthanasia.

ODA announced the Board's proposed euthanasia standards today and will accept comments on the standards until October 20, 2010.  Following review of comments, ODA will submit the package to the joint legislative committee that oversees the administrative rulemaking process.  To view the proposed euthanasia standards, visit the ODA website, here.

Court of Appeals Strikes Down Portions of Ohio's Rule on "rbST-free" Labeling

The federal Court of Appeals for the Sixth Circuit has ruled in International Dairy Foods Assoc. v. Boggs, a controversial case long anticipated by Ohio's agricultural interests.  At the center of the controversy is Ohio's dairy labeling rule, adopted  by the Ohio Department of Agriculture in 2008.  Prior to the rule, many dairy producers who did not use the genetically engineered hormone called recombinant bovine somatotropin (rbST) included language on their product labels that indicated the product as "rbST free" or "from cows not treated with rbST."  Many others in the agricultural and dairy industries objected to such language, claiming that it was false and misleading and suggested that  "rbST free" dairy products were superior to others.  In response to such concerns, Governor Strickland directed the ODA to "define what constitutes false and misleading labels on milk and milk products" and to require dairy producers claiming that they do not use rbST to submit supporting documentation and create labels containing representations consistent with the Food and Drug Administration’s findings that there is no significant difference between milk from rbST-treated and untreated cows. 

The ODA rule, adopted  amidst much controversy that divided Ohio's agricultural interests, states that:

(A) Pursuant to sections 917.05 and 3715.60 of the Revised Code, dairy products will be deemed to be misbranded if they contain a statement which is false or misleading.

(B) A dairy label which contains a production claim that “this milk is from cows not supplemented with rbST” (or a substantially equivalent claim) may be considered misleading on the basis of such language, unless:

(1) The labeling entity has verified that the claim is accurate, and proper documents, including, but not limited to, producer signed affidavits, farm weight tickets and plant audit trails, to support the claim, are made readily available to ODA for inspection; and

(2) The label contains, in the same label panel, in exactly the same font, style, case, and color and at least half the size (but no smaller than seven point font) as the foregoing representation, the following contiguous additional statement (or a substantially equivalent statement): “The FDA has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows.”

(C) Making claims regarding the composition of milk with respect to hormones, such as “No Hormones”, “Hormone Free”, “rbST Free”, “rbGH Free”, “No Artificial Hormones” and “bST Free”, is false and misleading. ODA will not permit such statements on any dairy product labels. 

(D) Statements may be considered to be false or misleading if they indicate the absence of a compound not permitted by the United States [F]ood and [D]rug [A]dministration to be present in any dairy product, including, but not limited to antibiotics or pesticides. Except as otherwise provided in this rule, accurate production claims will not be deemed false or misleading.

Ohio Admin. Code § 901:11-8-01.

The International Dairy Foods Association (IDFA) and Organic Trade Association (OTA) both challenged Ohio's rule, claiming among other things that the rule is unconstitutional for violating their First Amendment rights to free speech and for violating the Commerce Clause.  On all but one claim at the trial level, the federal district court granted summary judgment in favor of the State and denied the request for injunctive relief; IDFA and OTA appealed the decision to the Sixth Circuit Court of Appeals.

In the appellate court's opinion issued on September 30, 2010, the court addressed three issues:  whether the rule's ban on any dairy composition claim violates the First Amendment;  whether the rule's disclosure requirement for production claims violates the First Amendment, and whether the rule violates the Consitition's Commerce Clause.  The court ruled as follows on each issue:

The rule's ban on "composition" claims such as "rbST free" and "hormone free."  Relying on the lack of scientific tests that can ascertain whether rbST exists in milk from either treated or non-treated cows, the court determined that a compositional claim such as "rbST free" is not inherently misleading since it "at best informs consumers of a meaningful distinction between conventional and other types of milk and at worst potentially misleads them into believing that a compositionally distinct milk adversely affects their health."  The court also concluded that although the State's purpose for the rule--to prevent consumer deception--is substantial, a record of such deception was merely hypothetical and the rule neither directly advanced that purpose nor was narrowly tailored to achieve the purpose.  Of importance to the court was the argument that producers should be permitted to use the "rbST free" language in conjunction with a disclaimer that would clarify that the hormone is definitively not in their milk but has not been detected in conventionally produced milk.  The court agreed that merely requiring producers to use a disclaimer would prevent deception and stated that a State "may not place an absolute prohibition on certain types of potentially misleading information...if the information also may be presented in a way that is not deceptive."  The complete ban on composition claims thus violated IDFA and OTA's First Amendment rights to conduct truthful commercial speech, held the court.

The rule's disclosure requirement for production claims.  The second issue concerned the rule's requirement for producers who state that "this milk is from cows not supplemented with rbST" to also include on the product label, contiguously and in a particular font, that "the FDA has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST supplemented cows."    The federal district court found that this disclosure requirement was "reasonably related" to the rule's purpose of preventing deception.  IDFA and OTA argued that the district court should have used a more stringent standard of review for the disclosure requirement, rather than a review of whether the requirement was "reasonable."  The appeals court disagreed, holding that reasonableness was the appropriate standard of review.  However, while the court held that a disclosure requirement is reasonably related to the purpose of preventing deception, it also determined that the rule's strict requirements for the size, font and location of the disclosure had no rational basis or "demonstrable connection to ensuring that consumers are not misled." Compelling to the court was an argument rejected by the federal district court--that the use of an asterisk on the label that would provide the disclosure elsewhere on the product, rather than the restrictive labeling requirements, would be less burdensome and would effectively inform the consumer.  The court of appeals reversed the federal district court's prohibition on the use of an asterisk in lieu of the restrictive formatting mandates in the disclosure requirement.

The rule's impact on interstate commerce.  IDFA and OTA argued that Ohio's rule created an undue burden on interstate commerce in violation of the Constitution's Commerce Clause.  Legal precedent requires the court to determine first whether the rule has the impermissible effect of controlling commerce outside the state's boundaries and second whether the result of the rule is preferential treatment for in-state economic interests.  If the answers to both are negative, the court may conclude that the rule is not invalid on its face but must then determine whether the rule burdens interstate commerce more than it benefits the State.  The appeals court quickly concluded that the rule was not invalid on its face because it did not mandate conduct outside Ohio, did not impede the free flow of milk products across the country and did not favor Ohio interests over outside interests.  The court proceeded to weigh the burdens and benefits of the rule and recognized the importance of the rule's intended benefits-- consumer protection--while noting that the potential burdens of the rule were diminished by the court's invalidation of the more restrictive provisions in the rule.  Thus, the burdens did not outweigh the benefits and the rule was not in violation of the Commerce Clause, said the court.

The court of appeals remanded the case back to the federal district court for further proceedings.  Barring a request for review of the decision to the U.S. Supreme Court, the outcome of the case will likely yield a formal revision of Ohio's dairy labeling rule.  We can expect to see a rule that does not prohibit the use of "rbST free" and similar language but requires disclosure that rBST has not been detected in conventional milk and allows the less restrictive use of an asterisk to disclose information that the FDA has not detected differences between products from rbST and non-rbST cows.

Read the Court of Appeals opinion in International Dairy Foods Assoc. v. Boggs here.

Ohio livetock farms have been a target of animal welfare organizations, evidenced by recent releases of undercover videos taken at  Buckeye Veal Services and Conklin Dairy Farm and the broadcast of the "Death on a Factory Farm" documentary.   The strategy is to gain employment or access to the farm, videotape without the knowledge or permission of the farm owner, and later release video suggesting that the farm mistreats its livestock.   This approach has heightened the visibility of farm animal welfare issues in Ohio, but the strategy and its impacts raise many legal issues.  A presentation I recently prepared for the Ohio Agricultural Law Symposium highlights research we're conducting at OSU to identify the legal issues and implications of the undercover video approach.  Below is synopsis of a few of the more controversial legal issues.

  • Ohio's penalty structure for animal cruelty.    At least one animal welfare organization claims that it has targeted Ohio for undercover investigations because Ohio is one of the few remaining states that limits animal cruelty punishment to misdemeanor penalties (with the exception of a repeated offense against "companion animals," which is a fifth degree felony).   Most states have adopted a felony penalty structure for acts of animal cruelty, which results in more severe punishment.  Ohio legislators have made nearly a dozen attempts to increase penalties for animal cruelty, most recently with H.B. 55 (see our earlier post).    The proposals always fail, allegedly due to an effective lobbying effort from groups who argue that penalties for cruelty to animals in Ohio should not be higher than those for abuse of humans.  While undercover video releases don't appear to be moving felony penalty legislation forward currently, they could be garnering public support for a future proposal.  Should Ohio adopt a felony penalty, and if it does, will undercover investigations find a new state target?
  • Duty to report animal abuse.   The videographer of the Conklin Dairy Farm video witnessed acts of mistreatment against animals by an employee for approximately one month before the organization released the videos.  Many argue that the videographer should have reported the abuse right away, but neither Ohio or any other state has a law requiring an ordinary person to report animal cruelty.  Fifteen states have laws mandating that veterinarians report suspected animal cruelty: Ohio does not.  Another 13 states have "voluntary" reporting laws for veterinarians, which grant a veterinarian immunity and a waiver of client confidentiality upon reporting abuse, but not Ohio.  Ohio does have several mechanisms a person could use to initiate an investigation of suspected animal cruelty through local law enforcement or the county humane society.  In a similar vein, should livestock farms have an employment policy requiring employees to report incidents of animal mismanagement and abuse by other employees?
  • Who's committing the crime?   The person committing the act against an animal is the obvious offender, but what about the videographer and the employer?  Circumstances may exist such that the videographer was a legal "accomplice" to the crime.  Under Ohio law, a person can be prosecuted as an accomplice  if the person solicited another to commit a criminal offense; aided, abetted or conspired with another in committing the offense;  or caused an innocent or irresponsible person to commit the offense, and also shared in the intent to commit the crime.    Likewise, it may be possible to prove that a videographer acted with "recklessness" by observing and taping the crime or by encouraging and interacting with the offender; recklessness is the required mental state for an animal cruelty violation.  As for the employer, Ohio's humane society law clarifies that a conviction of an employee for animal cruelty does not prevent the prosecution of the employer for "allowing a state of facts to exist which will induce cruelty to animals" by the employee. 

These are only a few of the issues surfacing from the undercover video strategy.  Given the current climate of continued attempts to "out" livestock farmers and push the farm animal welfare issue in Ohio, perhaps it's time we begin finding solutions to the issues.

 

 

 

Posted In: Animals
Tags: Animals, Farm animal welfare, livestock
Comments: 0

Court has agreed to review appellate decision to close winery

A controversial split decision  on agricultural zoning from the Fifth District Court of Appealswill go before the Ohio Supreme Court.  The court has agreed to review Terry v. Sperry, 2010-Ohio-1299 (March 23, 2010), an appellate decision that endorsed a township's desire to close down a winery in an exurban residential area.  The court agreed with the township's assertion that Myrrdin Winery could not utilize Ohio's "agricultural exemption" from township zoning authority because the winery imported more grapes than it grows on the premises and thus does not meet the statute's definition of "agriculture."  Because the winery did not qualify as "agriculture,"  the court held that the township could enjoin its operation.  We disagree with the court's reliance on the definition of "agriculture" because the statute also includes specific exemption  language for wineries that bypasses the agriculture definition.  See our earlier post,  Ohio court allows township to use zoning to prohibit winery.

The Supreme Court's decision to review the case should result in much needed clarification of township zoning authority over wineries, a recurring issue  in Ohio.   With more and more wineries developing in Ohio, many will be anxious for the Supreme's Court's interpretation of the statute.  The court should reach a decision in early 2011.

Posted In: Zoning
Tags: agricultural zoning, land use
Comments: 0

Ohio Agricultural Law Symposium will take place September 17, 2010

Ohio State University Extension and the Ohio State Bar Association will again partner to provide the third annual Ohio Agricultural Law Symposium on September 17, 2010.  The continuing legal education event targets the educational needs of attorneys who work in agricultural and rural arenas.  Ohio Supreme Court Justice Paul Pfeifer leads our slate of speakers; he'll provide an update on relevant case law impacting agriculture.  Joining the Justice will be  Jesse Richardson, Assoc. Prof. from Virginia Tech and Policy Advisor for the Water Resources Council, who will address water law and ethics in counseling farm families.  Duane Siekman, CEO of the Ohio Corn Growers and Ohio Wheat Growers Associations, will present on energy and agriculture, and  Tony Logan, Ohio's USDA Rural Development State Director, will provide an update from his office.  The local food and farming landscape, a growing practice area for agricultural and rural attorneys, will be the topic of discussion from Jill Clark with OSU's Center for Farmland Policy Innovation.  Attorneys Robert Moore and Dave Pennington of Wright Law Company will present on proving damages in agricultural litigation, and attorneys David Pryor and Greg Flax will lead a panel discussion on growing the agricultural law practice.  I'll provide a presentation on the legal issues attendant to undercover operations on the farm. 

The Symposium will take place at The Ohio State University on the Friday before an Ohio football showdown between OSU and Ohio University--attorneys can come for the education and stay for the game.  For more information, visit the Ohio State Bar Association CLE link at http://www.ohiobar.org or click here for the Symposium Brochure 2010.

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