BILL NUMBER: AB 541 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 22, 2008
AMENDED IN SENATE AUGUST 21, 2008
AMENDED IN SENATE JULY 2, 2008
AMENDED IN SENATE JUNE 10, 2008
AMENDED IN SENATE JUNE 2, 2008
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,
and Lieber)
(Coauthor: Senator Migden)
FEBRUARY 21, 2007
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
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 provide a protocol for obtaining and testing a
crop sample to determine whether a contract has been breached or a
patent on a genetically engineered plant 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 based on the presence or possession of a patented genetically
engineered plant when the farmer did not knowingly buy or otherwise
knowingly acquire the genetically engineered plant, acted in
good faith and without knowledge of the genetically engineered nature
of the plant, and when the genetically engineered plant is
detected at a de minimis level, as specified. This bill would
limit the applicability of its liability provision, as specified.
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: 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
definitions apply:
(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
occurred.
(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 either of the
following:
(1) In vitro nucleic acid techniques, including recombinant
deoxyribonucleic acid (DNA) and direct injection of nucleic acid into
cells or organelles.
(2) Fusion of cells beyond the taxonomic family that overcome
natural physiological reproductive or recombinant barriers and that
are not techniques used in traditional breeding and selection.
52301. (a) Before a person or his or her agent holding a patent
on a genetically engineered plant, 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 all 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) Provide a copy of that notification to the secretary.
(3) Obtain the written permission of the farmer.
(4) Provide notice to the farmer of the following procedures which
shall be applicable as provided:
(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 land.
(B) 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.
(C) The procedures described in Section 52302.
(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).
52302. If requested by either party, the secretary or his or her
designee shall be present for the sampling, provide for the
collection of samples, or conduct any other aspect of the sampling or
analysis process as requested. The secretary shall designate an
employee or enter into an agreement with an employee or agent of the
State of California or a third party unaffiliated with either party
to carry out the specified sampling activity as provided in
regulations adopted pursuant to Article 2 (commencing with Section
52251) of Division 18. The patentholder shall pay the fee charged by
the department under regulations adopted pursuant to that article.
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 at least 24 hours in advance.
52303. 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.
52304. The results of any testing conducted pursuant to this
article shall be sent by registered letter by the testing party to
all parties involved in the investigation within 30 days after the
results are reported from the testing laboratory.
52305. A farmer shall not be liable based on the presence or
possession of a patented genetically engineered plant on real
property owned or occupied by the farmer when the farmer did not
knowingly buy or otherwise knowingly acquire the genetically
engineered plant, the farmer acted in good faith and without
knowledge of the genetically engineered nature of the plant,
and when the genetically engineered plant is detected at a de minimis
level. The authority of a court to determine the presence of de
minimis levels of a genetically engineered plant is intended solely
for the purpose of assisting in adjudicating claims relating to the
possession or use of a patented genetically engineered plant in which
the seed labeler, patent holder, or licensee, has rights. Nothing in
this section is intended to establish, or be used as the
basis for establishing, an acceptable level at which a patented
genetically engineered plant may be present. to do any
of the following:
(a) Establish, or be used as the basis for establishing, an
acceptable level at which a patented genetically engineered plant may
be present.
(b) Be used to alter or limit liabilities or remedies for personal
injury or wrongful death.
(c) Be used outside or beyond the scope or context of a legal
dispute regarding genetically engineered plants.
52306. 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. 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.