8 LEGAL ISSUES FACING AG TECH

Agriculture is at a “crossroads between longing for what farming used to be and the ideals shaping where farming is going,” says Todd Janzen, whose passion for agriculture can be traced back to his upbringing on his family’s diversified grain and livestock farm in south-central Kansas.

Founded in 2015, Janzen Ag Law works where those roads come together, addressing the needs of an industry evolving at a rapid pace. Janzen offers his insight on the hurdles ag must overcome as the following eight emerging technologies go mainstream.

INTERNET OF THINGS

There are so many sensors on the farm today, and all of these sensors are connected to the internet. “I feel like we haven’t even really harnessed what all of this means for farmers and ag tech companies,” Janzen says.

For example, the Teralytic soil probe uses 26 sensors to provide detailed soil quality data on soil moisture, salinity, and NPK at three different depths, as well as aeration, respiration, air temperature, light, and humidity. The probe communicates with the cloud wirelessly, and user data can be accessed on Teralytic’s dashboard or another platform via its open API. Data and analytics are continually updated, so farmers get a real-time look into the plant-available nutrients in their soils.

“This technology could have some pretty important ramifications for farmers, as well as regulators, who are wondering if the products being put on fields are staying on fields,” Janzen says.

DATA COLLECTION AND ANALYTICS 

When it comes to signing up for a platform, Janzen always looks at whether or not farmers understand what it means. Even though the services a company offers may be similar, contracts can vary widely. This makes it difficult to comparison-shop based on what the contract says.

“Farmers have to ask questions like ‘What rights do I retain after transferring my data to a provider? What rights does a provider have to transfer my data to other companies?’ ” Janzen says.

With data collection, people often aren’t concerned about the answers to these questions until something goes wrong, and then suddenly, there is a lot of concern. When there is a massive data breach, a moment of reckoning will come in the ag data space.

“Companies that have paid a lot of attention to data ownership rights won’t be that worried, but others that have ignored data ownership questions will suddenly have to deal with it,” Janzen says.

Whether the company is well established or new to ag, it’s important to know if there is a plan in place to protect your data.

DRIVERLESS EQUIPMENT 

An early entrant into autonomy, the Dot Power Platform is helping Canadian farmers reimagine what a tractor could be. The mobile diesel-powered platform is designed to handle myriad implements. Its short- and long-range sensors make the platform more accurate and attentive than any human.

Removing the driver from the tractor seat, however, has been met with mixed reviews.

“For many Midwest farmers who can cover 500 acres in a day, there isn’t a pressing need to get out of the cab,” Janzen says. “When you start talking about areas in California where you may need 10 drivers to cover a specialty crop, there’s a lot more value in investing in autonomous technology.”

The labor shortage isn’t the only problem this technology could solve. As equipment has grown in size, it has also caused an increase in soil compaction. “The only way we’re going to solve that is to start downsizing equipment,” he says. “With no-till and other technologies, we’ve already reduced the number of field passes down to the bare minimum.”

While the benefits seem clear, autonomous technology also comes with myriad legal issues; the biggest one being liability. “If a machine is out in a field, it has to be able to stop when there is a problem or if there is an obstacle in its path,” Janzen says.

States like California are already modifying their OSHA regulations to address potential issues. For example, all self-propelled equipment has to have an operator stationed at the vehicle’s controls whenever it is moving. There is an exception for furrow-guided equipment that allows the vehicle to be controlled remotely. However, the operator must be within 10 feet of the controls, and the machine cannot travel more than 2 mph.

“Many of our laws are set up for human operators,” Janzen says. “If you’re applying manure or a pesticide, you often have to have a license. Our laws need to be modernized to reflect who is responsible when, for example, a driverless sprayer goes off target. Ultimately, someone has to be responsible.”

ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING

Both artificial intelligence (AI) and machine learning crop up whenever there’s talk about big data and analytics. In short, AI is the broader concept of machines being able to carry out tasks in a smart way. As more information is added to the database, the smarter these systems become. Machine learning is an application of AI based on the idea that when machines are given access to data, they learn on their own.

For example, Blue River Technology has developed a system that learns how to identify weeds and then targets spraying to those specific weeds rather than the entire field. “It is such a promising technology,” Janzen says. “If you connect that machine to other machines doing the same job, the value of that technology grows.”

Yet, there can be ethical concerns with machines doing human jobs.

TRACEABILITY

Today’s consumer is demanding more from those who produce their food. Technologies like blockchain allow food to be traced back to where it came from in a way it couldn’t in the past.

“We’re not far away from a consumer having the ability to scan a steak in the grocery store and being able to pull up a picture of the farm where the animal was raised and then look at any animal welfare complaints against that farm,” Janzen says.

Yet, he takes issue with the term smart contract, which is often used by blockchain programmers. “A smart contract is not making an educated decision,” Janzen explains. “It’s merely executing a protocol, ‘When X happens, then do Y.’ ”

While blockchain may remove the middle man, a new one will be created, because someone has to run and control it. Blockchain may drive down costs, or it may shift those costs to the technology provider.

It will also not stop fraud. If someone enters a false event somewhere in the blockchain, it may not be discovered right away because users of the blockchain assume everything is accurate, Janzen says.

E-COMMERCE 

FBN Direct has caused quite a buzz in ag retail. “All of the large farm cooperatives are scurrying to create their own e-commerce platform,” Janzen says. “I think we are going to see more ag products shift to online purchases and see less of the service-oriented know-who-you’re-buying-from business model.”

This shift, however, could raise antitrust concerns. “Antitrust watchdogs will tell you that it’s fine to be an online retail platform selling others’ products,” he says. “However, when you start marketing your own branded product alongside competitors’ products in an online retail platform you control, you can easily create an unlevel playing field.”

These online platforms also elevate safety and homeland security alarms. “When you buy fertilizer from your local co-op, it knows who you are and that you are going to use that product on your fields,” Janzen says.

If that purchase is made online, the seller may or may not know the buyer and how that person plans to use the product. “There could be malicious intent there,” he says.

Products could also be sold in states where they are not lawful, because the platform may not realize it shouldn’t be selling dicamba in a state that prohibits its use.

ALTERNATIVE PROTEINS 

Whether it’s fake meat or soy milk, a number of companies are developing plant-based alternatives for products we’ve gotten from animals for centuries. These new choices are creating countless concerns.

The dairy industry, for example, has challenged the plant-based milk industry’s right to use the word milk. For years, there have been complaints that the FDA hasn’t policed the definition as products made from soy, almonds, cashews, rice, hemp, and oats filled the dairy aisle.

Cattle ranchers are fighting a similar battle. More than a dozen states have introduced laws that would make it illegal to use the word meat to describe burgers and sausages created from plant-based ingredients or grown in labs. In addition, some states, like Arizona and Arkansas, have introduced meat-labeling bills.

“As these alternative products continue to gain traction with consumers, the federal government needs to sort out how to regulate them,” Janzen says.

CRISPR 

What if we could turn off the gene that makes pigs susceptible to PRRS, a disease that is estimated to cost the U.S. $664 million per year?

While turning off an undesirable trait in a plant’s or animal’s genetic makeup has great potential, consumers are reluctant to embrace this technology because it disturbs the natural order of things.

“I often wonder if consumers would feel the same way if scientists discovered they could turn off the Alzheimer’s gene with this technology,” he says.

The questions of how these products will be labeled, as well as who will regulate them, have to be addressed.