BILL NUMBER: AB 541 AMENDED
AMENDED IN ASSEMBLY JANUARY 17, 2008
AMENDED IN ASSEMBLY APRIL 23, 2007
AMENDED IN ASSEMBLY APRIL 17, 2007
INTRODUCED BY Assembly Member Huffman
(Principal coauthor: Assembly Member Coto)
(Coauthors: Assembly Members Beall, Berg, DeSaulnier, Krekorian,
(Coauthor: Senator Migden)
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. An act
to add Article 2.6 (commencing with Section 52300) to Chapter 2 of
Division 18 of the Food and Agricultural Code, relating to liability.
LEGISLATIVE COUNSEL'S DIGEST
AB 541, as amended, Huffman. Liability: genetically engineered
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, as
defined, directly or through its licensees or agents, of a
genetically engineered plant that causes the presence of the plant
within the property owned or operated by a person for whom the plant
presence was not intended shall constitute a private nuisance,
subjecting the manufacturer to liability for resulting damages if
specified criteria are met. 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, except as specified,
and that a prevailing plaintiff in an action under these provisions
may recover damages as are recoverable at common law in an action for
private nuisance, reasonable attorney's fees, and other litigation
costs and expenses, including expert witness fees.
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 creates 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 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
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would provide a protocol for obtaining and testing a
crop sample to determine whether a contract has been breached or a
patent on a transgenic organism has been infringed by a farmer who is
planting, managing, or harvesting a crop, as specified. The bill
would provide for agreed or court-ordered sampling, with provisions
relating to notice to the parties of sampling and results, protective
orders against intentional destruction or damage to crops, and fees
for sampling by or under agreement with the Secretary of Food and
Agriculture. The bill would provide that a farmer is not liable for
breach of a seed contract or patent infringement for a de minimis or
unintentional possession of a product in which the seed labeler, or
patent holder or licensee, has rights. This bill would state the
intent of the Legislature, as specified, in enacting this act.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 2.6 (commencing with Section
52300) is added to Chapter 2 of Division 18 of the Food
and Agricultural Code , to read:
Article 2.6. Genetically Engineered Plants
52300. For purposes of this article only, the following
(a) "Farmer" means the person responsible for planting a crop,
managing the crop, and harvesting the crop from land on which a
breach of contract or patent infringement is alleged to have
(b) "Transgenic organism" means an organism, including, but not
limited to, animal, plant, bacterium, cyanobacterium, fungus,
protist, or virus altered or produced through genetic modification
from a donor, vector, or recipient organism using modern molecular
techniques such as recombinant deoxyribonucleic acid methodology, and
any living organisms derived therefrom.
52301. (a) Before a person or his or her agent holding a patent
on a transgenic organism may enter upon any land farmed by another
for the purpose of obtaining crop samples to determine whether breach
of contract or patent infringement has occurred, the person holding
the patent or his or her agent shall do both of the following:
(1) Notify the farmer in writing of the allegation that breach of
contract or patent infringement has occurred and request permission
to enter upon the farmer's land.
(2) Obtain the written permission of the farmer.
(b) The farmer shall grant or deny access in writing within 10
days of receipt of a request to enter the land pursuant to
subdivision (a). If the farmer withholds permission, the person
holding a patent may petition the superior court in the county in
which the alleged breach of contract or patent infringement has
occurred for an order granting permission to enter upon the farmer's
52302. If either party requests the secretary to provide for the
collection of samples under Section 52301, or to participate in or
conduct any other aspect of the sampling or analysis process, the
secretary shall designate an employee or enter into an agreement with
a person or entity to implement the specified activity as provided
in regulations adopted pursuant to Section 52305. The person or
entity may be, but is not required to be, an employee or agency of
the state. The patent holder shall pay the fee charged by the
department under regulations adopted pursuant to Section 52305. The
farmer or the agent of the farmer and the person holding the patent
may be present at any collection of samples conducted pursuant to
this article, and each shall be notified of the time and location of
the sample taking in a timely manner.
52303. If the person holding a patent believes that the crop from
which samples are to be taken may be subject to intentional damage
or destruction, the person may seek a protective order from the
superior court. The protective order shall be crafted to minimize
interruption or interference with normal farming practices, including
harvest and tillage.
52304. Samples for analysis may be taken from a standing crop,
from representative standing plants in the field, or from crop
residue remaining in the field after harvest.
52305. The secretary may adopt rules, pursuant to Section 52331,
to determine sampling protocols, which may specify all of the
(a) Who is authorized to collect samples or conduct related
(b) Methods of sample storage.
(c) Standards for sampling, inspecting, analyzing, and testing
seeds consistent with this article.
(d) Fees to recover sampling and related costs.
52306. The results of any testing conducted pursuant to this
article shall be sent by registered letter by the testing party to
the other party within 30 days after the results are reported from
the testing laboratory.
52307. A farmer is not liable for the breach of a seed contract
or for patent infringement if a product, in which the seed labeler,
or patent holder or licensee, has rights, is possessed by the farmer
or found on real property owned or occupied by the farmer and the
presence of the product is de minimis or not intended by the farmer.
SEC. 2. It is the intent of the Legislature to
clarify, as needed, the role and responsibility of the Department of
Food and Agriculture in the oversight of regulated agricultural
biotechnology. All matter omitted in this version of the bill
appears in the bill as amended in the Assembly, April 23, 2007 (JR11)