BILL NUMBER: AB 541	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Huffman

                        FEBRUARY 21, 2007

   An act to add Part 9 (commencing with Section 7200) to Division 4
of the Civil Code, to add Article 6 (commencing with Section 510) to
Chapter 3 of, and to repeal Article 5 (commencing with Section 491)
of Chapter 3 of, Part 1 of Division 1 of, the Food and Agricultural
Code, relating to liability.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 541, as introduced, Huffman. Liability: genetically engineered
plants.
   Existing law provides that everyone is generally responsible, not
only for the result of his or her willful acts, but also for an
injury occasioned to another by his or her want of ordinary care or
skill in the management of his or her property or person, except so
far as the latter has, willfully or by want of ordinary care, brought
the injury upon himself or herself.
   This bill would state several findings and declarations regarding
genetically engineered plants.
   This bill would provide that the release by a manufacturer,
directly or through its licensees or agents, of a genetically
engineered plant that causes the unintended presence of the plant
part within the property owned or occupied by a person with whom the
manufacturer has not entered a contract of sale, use, or license
shall constitute an unreasonable interference with the use and
enjoyment of the person's property. This bill would provide that if
the release results in damages in any calendar year that exceed
$3,500, it shall constitute substantial interference with the use and
enjoyment of the person's property, constituting a private nuisance,
and subjecting the manufacturer to liability for resulting damages.
This bill would also provide that the liability created pursuant to
these provisions may not be waived or otherwise avoided by contract
or other means and that a person who prevails in an action under
these provisions may recover compensatory damages, reasonable
attorney's fees, and other litigation expenses and costs.
   This bill would also provide that a person who is not in breach of
contract regarding the purchase or use of a genetically engineered
plant and unknowingly comes into possession or uses that genetically
engineered plant as a result of natural reproduction,
cross-pollination, seed mixing, or other commingling or unintended
presence or other contamination shall not be liable for any damages,
attorney's fees, or costs caused by the possession or use of that
genetically engineered plant.
   Existing law create the Food Biotechnology Task Force to evaluate
various factors related to food biotechnology including potential
benefits and impacts to human health, the state's economy, and the
environment accruing from food biotechnology.
   This bill would repeal those provisions. This bill would require
that not less than 30 days prior to the open field production of a
genetically engineered plant, any person intending to undertake that
production to notify the agricultural commissioner in the county
where the production will occur. This bill would require each county
agricultural commissioner to include in the annual county crop report
submitted to the Department of Food and Agriculture information
collected during the year on the number of acres of open field
production of genetically engineered plants, the types of crops
produced, and the genetic traits of those crops. This bill would also
provide that the Secretary of Food and Agriculture or agricultural
commissioner shall levy a civil penalty against any person who fails
to provide the required notice, or who violates any regulations
adopted pursuant to these provisions, in an amount not less than $500
nor more than $5,000 for each violation.
   This bill would prohibit the production of a pharmaceutical crop
that is produced by means of open field production and is of a plant
species that is commonly produced for use as food for humans or
animals. This bill would provide that the secretary shall investigate
any suspected violation of this provision and that the secretary or
agricultural commissioner shall levy a civil penalty against any
person who fails to provide the required notice, or who violates any
regulations adopted pursuant to these provisions, in an amount not
less than $1,000 nor more than $10,000 for each violation.
   Because this bill would create new crimes, this bill would impose
a state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) Genetically engineered plants have been shown to be dispersed
into the environment through pollen drift, seed commingling, and
inadvertent transfer of seeds by humans, animals, and weather events.

   (b) The unintended presence of genetically engineered plants and
material in agricultural crops can have devastating economic impacts
for producers who sell in organic markets and foreign markets that
prohibit or restrict products that contain genetically engineered
material.
   (c) The liability for the uncontrollable movement of genetically
engineered material is being unfairly passed from manufacturers of
genetically engineered plants to innocent and unknowing farmers and
other property owners.
   (d) It is in the interest of the state to ensure that the use of
genetically engineered plants in California is conducted in a manner
that does not result in economic loss resulting from the unintended
presence of genetically engineered materials in crops or on other
property other than those for which the use is authorized by the
manufacturer. It is further in the interest of the state to ensure
that innocent farmers, farm businesses, and other property owners are
shielded from legal liability for the presence of genetically
engineered material in their crops that occurred without their
knowledge and is beyond their control.
  SEC. 2.  Part 9 (commencing with Section 7200) is added to Division
4 of the Civil Code, to read:

      PART 9.  Liability For Damages Caused by Genetically Engineered
Plants


   7200.  As used in this part, the following definitions apply:
   (a) "Genetically engineered plant" has the same meaning as defined
in subdivision (b) of Section 512 of the Food and Agricultural Code.

   (b) "Manufacturer" means a person that makes and commercializes a
genetically engineered plant.
   (c) "Modern biotechnology" has the same meaning as defined in
subdivision (c) of Section 512 of the Food and Agricultural Code.
   (d) "Person" includes any individual, partnership, limited
liability company, limited liability partnership, corporation, firm,
company, or any other entity doing business in California.
   7202.  (a) (1) The release by a manufacturer, directly or through
its licensees or agents, of a genetically engineered plant that
causes the unintended presence of the plant part within the property
owned or occupied by a person with whom the manufacturer has not
entered a contract of sale, use, or license shall constitute an
unreasonable interference with the use and enjoyment of the person's
property.
   (2) A release that meets the conditions of paragraph (1) and that
results in damages in any calendar year that exceed three thousand
five hundred dollars ($3,500) shall constitute substantial
interference with the use and enjoyment of the person's property.
   (3) A release that meets the conditions of paragraphs (1) and (2)
shall constitute a private nuisance, and the manufacturer shall be
liable for any damages resulting from the private nuisance.
   (b) Notwithstanding other provisions of this part, defenses at law
or equity available in a private nuisance action apply, except it
shall not be a defense to an action based on the liability arising in
subdivision (a) that genetically engineered plants are in common or
general use in the geographic region in which the property on which
the nuisance occurs are located, nor shall the person owning or
occupying the property have a duty to establish buffer zones,
segregation protocols, or otherwise initiate measures to protect
specifically against the potential release of genetically engineered
plants onto his or her property.
   (c) A person who is not in breach of contract regarding the
purchase or use of a genetically engineered plant and unknowingly
comes into possession or uses that genetically engineered plant as a
result of natural reproduction, cross-pollination, seed mixing, or
other commingling or unintended presence or other contamination shall
not be liable for any damages, attorney's fees, or costs caused by
the possession or use of that genetically engineered plant.
   (d) A manufacturer shall not be liable for any damages resulting
from private nuisance if the court finds either of the following:
   (1) That all of the following conditions are met:
   (A) The plaintiff or his or her agent acted in gross negligence.
   (B) The plaintiff received and signed a contract with the
manufacturer.
   (C) The plaintiff received a training manual from the
manufacturer.
   (D) The court finds that the damages would not have occurred had
the plaintiff or his or her agent followed the terms of the
manufacturer's contract and training manual.
   (2) Any person not included under paragraph (1) acted in a grossly
negligent manner that caused damages from the use of a genetically
engineered plant manufactured by the manufacturer.
   (e) A person who prevails in an action under this section may
recover compensatory damages, reasonable attorney's fees, and other
litigation expenses and costs.
   (f) The liability created by this section may not be waived or
otherwise avoided by contract or other means.
   (g) A cause of action under this section shall be in addition to
and not in lieu of existing actions at law and equity, provided,
however, that there shall be only one recovery of any specific
damages as defined in this section.
   (h) The provisions of this part shall apply notwithstanding any
other provision of law.
   7204.  (a) A contract for the purchase of seeds or plant parts in
California is governed by the laws of California.
   (b) Any provision of a seed contract executed in California that
purports to waive the provisions of this part, to choose the laws of
another jurisdiction to govern the contract, or to choose a forum for
adjudication of disputes arising out of the contract that would not
otherwise have jurisdiction over the parties to the contract, is void
and unenforceable.
   7206.  The proper venue for an action under this part is the
superior court in the county in which the injury is alleged to have
occurred.
   7208.  The provisions of this part are severable. If any provision
of this part or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
  SEC. 3.  Article 5 (commencing with Section 491) of Chapter 3 of
Part 1 of Division 1 of the Food and Agricultural Code, as added by
Chapter 589 of the Statutes of 2000, is repealed.
  SEC. 4.  Article 6 (commencing with Section 510) is added to
Chapter 3 of Part 1 of Division 1 of the Food and Agricultural Code,
to read:

      Article 6.  Genetically Engineered Plants


   510.  The Legislature finds and declares the following:
   (a) The unintended presence of genetically engineered plants and
material in agricultural crops can have adverse economic impacts on
agricultural producers, including producers who sell to organic
markets and foreign markets.
   (b) It is in the interest of the state to take steps to minimize
the likelihood of adverse economic impacts due to the unintended
presence of genetically engineered plants and materials in
California, including by establishing a repository of information on
the open field production of genetically engineered plants in
California to assist in tracing the source of genetic material in the
event a genetically engineered plant is unintentionally present in
California.
   512.  Unless the context otherwise requires, the definitions in
this section govern the construction of this article.
   (a) "FDA" means the United States Food and Drug Administration.
   (b) "Genetically engineered plant" means a plant or any plant part
or material, including, but not limited to, seeds and pollen, in
which the genetic material has been changed through modern
biotechnology in a way that does not occur naturally by
multiplication or natural recombination.
   (c) "Modern biotechnology" means the application of in vitro
nucleic acid techniques, fusion of cells, including protoplast
fusion, or hybridization techniques beyond the taxonomic family that
overcome natural physiological, reproductive, or recombination
barriers and that are not techniques used in traditional breeding and
selection, including, but not limited to, all of the following:
   (1) Recombinant deoxyribonucleic acid (DNA).
   (2) Direct injection of nucleic acid into cells or organelles.
   (3) Recombinant DNA techniques that use vector systems and
techniques involving the direct introduction into the organism of
hereditary materials prepared outside the organism, such as
microinjection, macroinjection, chemoporation, electroporation,
microencapsulation, and liposome fusion.
   (d) "Open field production" means the planting, growing,
propagation, or cultivation of any genetically engineered plant
outside an enclosed structure, such as a greenhouse, indoor
laboratory or other self-contained production system.
   (e) "Pharmaceutical crop" means a seed or plant that is
genetically engineered to produce compounds for which
commercialization requires approval from one of the following:
   (1) The FDA Center for Biologics Evaluation and Research.
   (2) The FDA Center for Drug Evaluation and Research.
   (3) The FDA Center for Veterinary Medicine.
   (4) The USDA Center for Veterinary Biologics.
   (f) "USDA" means the United States Department of Agriculture.
   514.  (a) Not less than 30 days prior to the open field production
of a genetically engineered plant, any person intending to undertake
that production shall notify the agricultural commissioner in the
county where the production will occur.
   (b) Notice to the agricultural commissioner shall be provided on a
form made available by the commissioner, prepared by the department,
after consultation with the California Agricultural Commissioners
and Sealers Association. The department and county agricultural
commissioners shall make every reasonable effort to reduce the burden
of submitting the notice, including making the form available and
allowing it to be submitted by hard copy and in an online format. The
notice shall include, at a minimum, the following information
regarding the open field production of a genetically engineered
plant:
   (1) Proposed date of open field production.
   (2) Proposed location and number of acres.
   (3) The kind, variety, type and lot number, as those terms are
defined in Part 201 of Title 7 of the Code of Federal Regulations, of
a seed or plant.
   (4) Trait or traits for which the plant is genetically engineered.

   (c) An agricultural commissioner may, at his or her discretion,
require information beyond the information identified in subdivision
(b) regarding the open field planting of genetically engineered
plants.
   516.  (a) Each county agricultural commissioner shall include in
the annual county crop report submitted to the department pursuant to
Section 2272 information collected during the year pursuant to
Section 514 on the number of acres of open field production of
genetically engineered plants, the types of crops produced, and the
genetic traits of those crops. Information shall be presented as a
countywide aggregate and shall not provide information regarding the
specific location of the production or the identification of any
producer.
   (b) Information submitted to the department pursuant to
subdivision (a) shall be included in the annual California
Agricultural Resource Directory published by the department.
   518.  (a) The secretary or agricultural commissioner shall levy a
civil penalty against any person who violates Section 514, or any
regulations adopted pursuant to that section, in an amount not less
than five hundred dollars ($500) nor more than five thousand dollars
($5,000) for each violation. The amount of the penalty assessed for
each violation shall be based upon the nature of the violation, the
seriousness of the effect of the violation upon the effectuation of
the purposes and provisions of this article, the violator's history
of previous violations, and the impact of the penalty on the
violator, including the deterrent effect on future violations.
   (b) For a first offense, in lieu of a civil penalty as prescribed
in subdivision (a), the secretary or agricultural commissioner may
issue a notice of violation.
   520.  The Legislature finds and declares all of the following:
   (a) Unlike plants that are genetically engineered for food and
feed purposes to, for example, increase a plant's compatibility with
herbicides or improve targeted production or quality traits, food and
feed crops also are genetically engineered for nonfood purposes,
specifically as a medium for the production of human and animal
pharmaceutical drugs and biologics.
   (b) Food and feed crops used to produce pharmaceutical drugs and
grown in an open field environment can contaminate other fields with
the same crops designed for food and feed use, both by the dispersal
of pollen to fields where food and feed crops are grown and by
intermingling of pharmaceutical crop seeds and plants with the
indistinguishable crops destined for food and feed markets.
   (c) Pharmaceutical crop drugs are designed to be biologically
active in humans and animals, posing serious public health risks if
the food crops in which they are produced contaminate the food supply
for humans and animals.
   (d) The discovery of a pharmaceutical drug or other substance in
the state's food supply could have tremendously disruptive effects on
the state's agricultural and food supply industries and severely
undermine consumer and export market confidence in the safety of the
food supply.
   (e) It is in the interest of the state to prevent the
contamination of the state's food supply by pharmaceutical drugs
produced by genetically engineered plants that are grown for purposes
of food and feed.
   522.  The production within the state of a pharmaceutical crop
that meets both of the following conditions is hereby prohibited:
   (a) The pharmaceutical crop is produced by means of open field
production.
   (b) The pharmaceutical crop is of a plant species that is commonly
produced for use as food for humans or animals.
   524.  (a) The department shall investigate suspected violations of
Section 522 based upon a reasonable belief that the subject of the
investigation is not in compliance with that section.
   (b) Anonymous complaints, unattributable information, or
undocumented information shall not constitute reasonable belief and
shall not be the basis for any investigation or audit action brought
under this section.
   526.  The secretary or agricultural commissioner shall levy a
civil penalty against any person who violates Section 522, or any
regulations adopted pursuant to that section, in an amount not less
than one thousand dollars ($1,000) nor more than ten thousand dollars
($10,000) for each violation. The amount of the penalty assessed for
each violation shall be based upon the nature of the violation, the
seriousness of the effect of the violation upon the effectuation of
the purposes and provisions of this article, the violator's history
of previous violations, and the impact of the penalty on the
violator, including the deterrent effect on future violations.
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.