BILL NUMBER: AB 996 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Dickinson
FEBRUARY 22, 2013
An act to amend Sections 43100, 47000, 47001, 47002, 47010, 47011,
and 47021 of, to add Sections 47000.5, 47001.2, 47001.5, 47014,
47020.5, and 47055 to, to add Chapter 9 (commencing with Section 890)
to Part 1 of Division 1 of, to add and repeal Section 47021.5 of, to
repeal Section 47004.1 of, to repeal Article 2 (commencing with
Section 47010) of Chapter 10.5 of Division 17 of, and to repeal and
add Sections 47004 and 47020 of, the Food and Agricultural Code,
relating to food and agriculture, and making an appropriation
therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 996, as introduced, Dickinson. Agricultural products: direct
marketing: certified farmers' markets.
(1) Existing law authorizes the use of the term "California grown"
and similar terms for marketing, advertising, or promotional
purposes only to identify food or agricultural products that have
been produced in the state or harvested in its surface or coastal
waters, and makes the fraudulent use of the term or a deliberately
misleading or unwarranted use of the term a misdemeanor punishable by
a fine of not less than $100 or more than $3,000, or by imprisonment
in the county jail for not more than 6 months, or by both the fine
and imprisonment.
This bill would make it unlawful for any person or entity to
intentionally make any statement, representation, or assertion
relating to the sale or availability of agricultural products that is
false, deceptive, or misleading, as specified, and would make a
violation of those provisions a misdemeanor punishable by
imprisonment in the county jail not exceeding 6 months, by a fine not
exceeding $2,500, or both the fine and imprisonment. By creating a
new crime, the bill would impose a state-mandated local program.
The bill would also authorize the Secretary of Food and
Agriculture or a county agricultural commissioner, in lieu of
prosecution, to levy a civil penalty, as specified, or take action
against a license, permit, registration, or certification issued
pursuant to the Food and Agricultural Code. The bill would make those
penalties applicable to the fraudulent use of the term "California
grown," as specified above. The bill would require the civil
penalties collected by a county agricultural commissioner to be paid
to the county treasurer, and would require civil penalties collected
by the secretary to be deposited in the Department of Food and
Agriculture Fund as continuously appropriated funds to be used to
conduct investigations and enforcement actions relating to false,
deceptive, or misleading statements relating to agricultural
products, and for other specified purposes. By establishing a
continuously appropriated fund, the bill would make an appropriation.
(2) Existing law regulates direct marketing of agricultural
products, and provides for various findings and declaration in that
regard. Existing law authorizes the Secretary of Food and Agriculture
to adopt regulations relating to the direct marketing of
agricultural products, authorizes a county agricultural commissioner
to issue a certified farmers' market certificate, and requires the
county agricultural commissioner to inspect certified farmers'
markets within his or her jurisdiction. Existing law authorizes a
county agricultural commissioner to charge certification and
inspection fees, and provides for the assessment of penalties and
fines relating to the certification, inspection, and regulation of
certified farmers' markets. These fees and penalties are deposited in
the Department of Food and Agriculture Fund, and are required to be
used, upon appropriation by the Legislature, for related
administrative and regulatory purposes.
This bill would define the terms "producer" and "agricultural
product" for purposes of the provisions relating to direct marketing.
The bill would authorize the secretary to contract with any county
agricultural commissioner's office for purposes relating to direct
marketing of agricultural products, and would authorize compensation
to be paid under those contracts from funds derived from assessments
and fees collected pursuant to the provisions relating to direct
marketing. The bill would authorize a certified farmers' market
operator to contract with a county agricultural commissioner's office
for verification inspections, as specified.
(3) Existing law provides for the issuance of a certified producer'
s certificate by a county agricultural commission, and authorizes the
county agricultural commission to charge a certificate and
inspection fee, to be deposited into the Food and Agriculture Fund,
as specified.
This bill would authorize the secretary to establish a domestic
direct marketing advisory committee to, among other things, assist
the department in reviewing regulations affecting, and advise the
secretary in matters relating to, the domestic direct marketing of
California-produced agricultural products. The bill would require
direct marketing producers to register with the Department of Food
and Agriculture and attest compliance with applicable laws and
regulations, as specified, would impose a registration fee of $25 to
be deposited in the Department of Food and Agriculture Fund and used
by the department for related administrative purposes.
(4) Existing law specifies that certified farmers' markets are
locations established in accordance with local ordinances, and
requires the governing board of a certified farmers' market with more
than one participating certified producer to adopt written rules and
procedures pertaining to the operation of the certified farmers'
market.
This bill would instead provide that certified farmers' markets
are California agricultural product outlets that are registered and
operated in accordance with specified provisions. The bill would
require vendors of agricultural products selling within a certified
farmers' market to comply with specified signage and labeling
requirements, and would make those representations subject to
criminal, civil, and administrative penalties, as specified above. By
creating a new crime, the bill would impose a state-mandated local
program. The bill would repeal provisions authorizing an aggrieved
certified producer to submit a request to the department for an
advisory opinion, and for the department to issue the advisory
opinion, and would repeal provisions requiring the department to
provide for an informal hearing process for grievances relating to
certified farmers' markets.
(5) Existing law requires the secretary to establish a certified
farmers' market advisory committee.
This bill would authorize, but not require, the secretary to
establish that committee, and would specifically limit the duties of
that committee to matters relating to certified farmers' markets, as
specified. The bill would repeal the provision relating to the
certified farmers' market advisory committee on January 1, 2015.
(6) Existing law requires a certified farmers' market certificate
to be obtained from a county agricultural commissioner, and
authorizes the county agricultural commissioner to assess a fee for
the certificate and for inspections, as specified.
This bill would repeal those provisions and instead would require
an operator of a certified farmers' market to annually register with
the department, and would require the county agricultural
commissioner to issue a certified farmers' market certificate upon
registration. The bill would require registered direct marketing
producers to register with the department and obtain certified
producer's certificates. The bill would require certified producers
to submit specified information to the department, including a list
of facilities at which their product was processed, as specified, and
would require each operator of a certified farmers' market to remit
to the department an investigation and enforcement fee based on the
number of individual agricultural product vendors whose products were
presented for sale on each market day for the previous quarter, as
specified. The bill would repeal those provisions relating to
remitting an investigation and enforcement fee on January 1, 2016.
(7) Existing law requires, until January 1, 2014, that every
operator of a certified farmers' market remit to the department a fee
equal to the number of certified producer certificates and other
agricultural producers participating on each market day for the
entire previous quarter, which shall be used by the department upon
appropriation by the Legislature, as specified.
This bill would instead require, until January 1, 2016, a program
fee equal to the number of agricultural product vendors participating
and selling goods under the authority and management of the
certified farmers' market operator on each market day for the entire
previous quarter to be remitted to the department.
(8) The bill would provide for the establishment of direct
marketing producer associations, and would authorize a direct
marketing producer association to sell California agricultural
products to members of the public, subject to specified provisions.
The bill would require the source of those products to be clearly
identified and would make a violation of those provisions a crime, as
specified. The bill would require a direct marketing producer
association to annually register with the department and pay a
registration fee, to be deposited into the Department of Food and
Agriculture Fund, and used for the administration and enforcement of
those provisions. The bill would regulate certified producer
consignment sales agreements, as defined, would require those
agreements to be annually registered with the department, and would
impose a $50 registration fee, to be deposited in the Department of
Food and Agriculture Fund for administration of the provisions
relating to certified producer consignment sales agreements.
(9) Because the bill would create new crimes, and by imposing new
requirements on county agricultural commissioners, the 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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 9 (commencing with Section 890) is added to
Part 1 of Division 1 of the Food and Agricultural Code, to read:
CHAPTER 9. INTENTIONALLY FALSE, DECEPTIVE, OR MISLEADING
MARKETING
890. (a) It is unlawful for any person or entity to intentionally
make any statement, representation, or assertion orally, by public
statement, advertisement, or signage, or by any other means that
relates to the sale or availability of agricultural products that is
false, deceptive, or misleading regarding any of the following:
(1) The area of production of the agricultural product.
(2) The identity of the producer of the agricultural product.
(3) The manner and method of production of the agricultural
product.
(b) A violation of the provisions of this section is a misdemeanor
punishable by imprisonment in the county jail not exceeding six
months, or by a fine not exceeding two thousand five hundred dollars
($2,500), or by both that imprisonment and fine.
891. In lieu of prosecution, the secretary, or a county
agricultural commissioner under the authority of the secretary, may
levy a civil penalty against a person or entity that violates this
section in an amount not less than five hundred ($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 scope of
the violation, the seriousness of the deception, and the impact of
the penalty on the violator, including the deterrent effect on future
violations. Subdivision (e) of Section 43003 shall apply to any fine
or civil penalty levied pursuant to this section.
892. (a) In addition to, or in lieu of, any action taken against
a person by the secretary or a county agricultural commissioner under
the provisions of Section 890 or 891, the secretary or a county
agricultural commissioner may modify, suspend, revoke, or refuse or
condition the issuance of a license, permit, registration, or
certification issued under the provisions of this code.
(b) Any action taken pursuant to this section shall be based upon
the scope of the violation, the seriousness of the deception, and the
corrective or deterrent effect on future violations.
(c) Any action taken pursuant to this section shall be subject to
the due process and applicable civil remedy provisions of this code
that govern the issuance of the license, permit, registration, or
certification.
893. (a) All civil penalties collected pursuant to this chapter
by the secretary shall be deposited in the Department of Food and
Agriculture Fund, and shall be used to conduct investigations and
enforcement actions upon complaints filed or pursuant to information
received that results in the investigation of a violation of Section
890. Money deposited pursuant to this chapter may also be used to
contract with county agricultural commissioners for services that
further the purposes of this chapter, and may be used for expenses
incurred by county agricultural commissioners for investigative and
enforcement actions conducted pursuant to this chapter.
Notwithstanding Section 13340 of the Government Code, all money
deposited pursuant to this chapter shall be continuously appropriated
to the department without regard to fiscal year for purposes of this
chapter.
(b) All civil penalties collected pursuant to enforcement actions
by a county agricultural commissioner under the provisions of this
chapter shall be paid to the county treasurer.
894. A proceeding brought by the state or a county for an act
that violates the provisions of Section 890 shall preclude any
concurrent or subsequent proceeding by the state or a county for the
same act, or a proceeding brought by a governmental agency under the
provisions of Section 17500 of the Business and Professions Code for
the same act.
SEC. 2. Section 43100 of the Food and Agricultural Code is amended
to read:
43100. (a) The terms "California grown," "California-grown," and
similar terms with identical connotations shall be used in the
labeling or advertising of agricultural products as follows:
(1) The terms "California grown," "California-grown," and similar
terms with identical connotations may be used for marketing,
advertising, or promotional purposes, only to identify food or
agricultural products that have been produced in the state or
harvested in its surface or coastal waters.
(2) The Secretary of Food and Agriculture
secretary may adopt guidelines, rules, and regulations to
further define acceptable uses of the terms "California grown,"
"California-grown," and similar terms with identical connotations,
and to prevent any misleading use of the terms.
(b) A fraudulent Any intentionally false,
deceptive, or misleading use of the term
terms "California grown" or grown,
" "California-grown," and similar terms with
identical connotations, or of any seals or other identities
officially adopted by the Department of Food and Agriculture
department in connection with these terms, or a
deliberately misleading or unwarranted use of
these items or terms , is a misdemeanor punishable by a fine
of not less than one hundred dollars ($100) or more than three
thousand dollars ($3,000), or by imprisonment in the county jail for
not more than six months, or by both the fine and imprisonment
shall be subject to the provisions and penalties set
forth in Chapter 9 (commencing with Section 890) of Part 1 of
Division 1 .
SEC. 3. Section 47000 of the Food and Agricultural Code is amended
to read:
47000. The Legislature finds and declares all of the following
with regard to the direct marketing of agricultural products:
(a) Direct marketing of agricultural products benefits the
agricultural community and the consumer by, among other things,
providing an alternative method for growers to sell their products
while benefiting the consumer by supplying quality produce at
reasonable prices.
(b) Direct marketing is a good public relations tool for the
agricultural industry that brings the farmer face-to-face with
consumers and other end users .
(c) The direct marketing potential of a wide variety of
California-produced agricultural products should be maximized
and encouraged .
(d) Farm stands allow farmers to sell fresh produce and eggs grown
on their farm as well as other food products made with ingredients
produced on or near the farm, thus enhancing their income and the
local economy.
(e) The department should maintain a direct marketing program and
the industry should continue to encourage the sale
and purchase of California-grown fresh produce and
other California-produced agricultural products .
(f) It is the intent of the state to promote the purchase and
consumption of California-grown produce and to promote access
to California-produced agricultural products. Restaurants and
nonprofit organizations can provide assistance in bringing
California-grown products to all Californians.
(g) A regulatory scheme should be developed that provides the
flexibility that will make direct marketing a viable marketing
system.
(h) The department should assist producers in organizing certified
farmers' markets, field retail stands, farm stands, and other forms
of direct marketing by providing technical advice on marketing
methods and in complying with the regulations that affect direct
marketing programs.
(i) The department is encouraged to establish an ad hoc advisory
committee to assist the department in establishing regulations
affecting direct marketing of products and to advise the secretary in
all matters pertaining to direct marketing.
SEC. 4. Section 47000.5 is added to the Food and Agricultural
Code, to read:
47000.5. The following definitions apply to this chapter, unless
otherwise specified:
(a) "Agricultural product" means a product produced in California,
including fruits, nuts, vegetables, herbs, mushrooms, dairy, shell
eggs, honey, flowers, grains, nursery stock, livestock meats, poultry
meats, rabbit meats, and fish, including shellfish that is produced
under controlled conditions in waters located in California. Products
that are characterized as arts, crafts, bakery, candies, soaps,
balms, perfumes, cosmetics, clothing, fabrics, pastas, compost,
fertilizers, and types of wares are not agricultural products for
purposes of this chapter.
(b) "Practice of the agricultural arts" means the undertaking of
being predominantly responsible for the decisions and actions
encompassing the various phases of producing an agricultural product.
The practice for fruit, floral, nut, vegetable, and other plant
products includes directive or actual responsibility for all the
actions of planting, growing, fertilizing, irrigating, cultivating,
pest control, and harvesting. The practice for agricultural animal
products includes directive or actual responsibility for a
substantial time of the raising, feeding, veterinary care, and
product harvesting.
(c) "Producer" means a person, partnership, corporation, or an
otherwise legally formed farm or ranch that produces agricultural
products by the practice of the agricultural arts upon land that the
person or entity owns, rents, leases, sharecrops, or otherwise
controls and has the documented legal right to possession. A person
or entity that rents, leases, or otherwise acquires the right to
possession of property essentially only for or limited to the period
of the harvest season of the agricultural products produced on that
property shall not be considered a producer under the provisions of
this chapter.
SEC. 5. Section 47001 of the Food and Agricultural Code is amended
to read:
47001. (a) The secretary may adopt regulations to encourage the
direct sale by farmers to the public of all types of
California agricultural products.
(b) These regulations may include provisions to ensure and
maintain quality and wholesomeness of the products, and to ensure
that the selling activities are conducted without fraud, deception,
or misrepresentation.
(c) The secretary may contract with any county agricultural
commissioner to carry out the provisions of this chapter, including
contracts for administration, investigations, inspections,
registrations, and assistance pertaining to direct marketing
producers and outlets. The secretary may enact regulations to
categorize the contracts and set compensation, fees, and rates for
each contract. Compensation under the contracts shall be paid from
assessments and fees collected and deposited under the provisions of
this chapter.
(d) A certified farmers' market operator may contract with a
county agricultural commissioner for a special onsite field or
storage verification inspection of a direct marketing producer
selling in a certified farmers' market operated and controlled by the
operator. A contract for a verification inspection shall be
authorized only pursuant to a reasonable suspicion of a violation of
this chapter. All contracts and contract fees are subject to the
discretion of the county agricultural commissioner in the county
where the verification inspections are being requested.
SEC. 6. Section 47001.2 is added to the Food and Agricultural
Code, to read:
47001.2. (a) The secretary may establish an advisory committee,
to be known as the domestic direct marketing advisory committee, to
assist the department in reviewing regulations affecting the domestic
direct marketing of agricultural products and to advise the
secretary in matters pertaining to the domestic direct marketing of
agricultural products. The committee shall develop ideas,
innovations, and funding sources for the safe, effective, efficient,
and honest marketing of agricultural products to occur within
California, with special attention given to California's underserved
and low-income communities, and determine what actions could be taken
to encourage the implementation of ideas, innovations, and funding.
Members of the committee shall serve without compensation or
reimbursement for expenses from the state.
(b) The committee may be composed of representatives of
organizations that have a significant number of members engaged in
the domestic direct marketing of agricultural products,
representatives of marketing groups that devote their resources to
the marketing and encouragement of consumption of agricultural
products by California consumers, individuals whose livelihood is
substantially supported by the domestic direct marketing of
agricultural products, representatives of other branches of
government whose regulations or programs monitor, control, or
encourage the consumption of agricultural products, and members of
the California consumer public who have demonstrated a special
interest in the availability and marketing of agricultural products.
The committee shall meet at the discretion or request of the
secretary.
(c) The committee may appoint officers, including a chairperson, a
vice chairperson, a secretary, and any other officers it deems
necessary. The committee may adopt rules that it deems necessary to
conduct its meetings and functions, and to carry out the objectives
of this chapter.
(d) The committee shall advise the secretary on matters pertaining
to the domestic direct marketing of agricultural products and may
make recommendations, including, but not limited to, the amendment,
repeal, or adoption of legislation and regulations that relate to the
administration and enforcement of this chapter, and the setting and
disposition of any fees assessed by the department pursuant to this
chapter.
SEC. 7. Section 47001.5 is added to the Food and Agricultural
Code, to read:
47001.5. (a) Every California agricultural producer intending to
sell directly to the California public shall annually register with
the department as a direct marketing producer. Registration shall
include the direct marketing producer's contact information, a
general list of agricultural products the direct marketing producer
intends to direct market, and the categories of direct marketing
methods the direct marketing producer intends to use. Methods and
outlets recognized and regulated by this chapter shall be listed.
(b) The registration for a direct marketing producer shall include
a statement that the person is in compliance with the following:
(1) Applicable United States Food and Drug Administration Food
Safety Modernization Act (FSMA) mandates and state regulations.
(2) The food is obtained from an approved source, as specified
under the Health and Safety Code.
(c) The annual registration fee for a direct marketing producer
shall be twenty-five dollars ($25). Fees collected shall be deposited
in the Department of Food and Agriculture Fund and shall be used
exclusively by the department for the administration of this section.
Administration shall include creating and maintaining an online
process and producer data filing system for registration, any
reimbursement for expenses incurred by county agricultural
commissioners for implementing or aiding in the registration process,
or any coordination expenses incurred relative to meetings and
actions of any domestic direct marketing advisory committee
established by the secretary pursuant to Section 47001.2.
(d) The annual fee shall be waived when the direct marketing
producer registration is combined with other annual registration or
certification processes where a fee is exacted from the producer for
processing. The registration provisions of this section shall be
complied with regardless of any waiver of fees granted.
(e) Nothing in this section supersedes any applicable provision of
any federal or state health and safety law, statute, or regulation.
SEC. 8. Section 47002 of the Food and Agricultural Code is amended
to read:
47002. California farmers registered as direct marketing
producers in accordance with Section 47001.5 may transport for
sale and sell California-grown fresh fruits, nuts, and vegetables
that they produce, directly to the public, which produce
and shall be exempt from size, standard pack,
container, and labeling requirements, at a certified farmers'
market, as defined in Section 47004, a field retail stand, as
defined in Section 47030, or a farm stand, as defined in Section
47050 an outlet or location operated by an individual,
organization, or entity that is regulated under this chapter or is
recognized by a regulation adopted pursuant to Section 4700
1 and is otherwise authorized by local laws , subject to the
following conditions:
(a) All fresh fruits, nuts, and vegetables sold shall comply with
the California Code of Regulations governing maturity and quality.
(b) No exemption granted by this section supersedes the provisions
of federal marketing orders, state marketing orders, or any health
and safety laws, regulations, or ordinances.
(c) All fresh fruits, nuts, and vegetables sold in closed consumer
containers shall be labeled with the name, address, and ZIP Code of
the producer, and a declaration of identity and net quantity of the
commodity in the package.
(d) If a farmer selling produce pursuant to this section
implements any exemption to size, standard pack, container, or
labeling requirements as provided by this section, those sales may
only be conducted as direct sales to the following:
(1) Consumers who are end users.
(2) Individuals, organizations, or entities that subsequently sell
the produce directly to end users.
(3) Individuals, organizations, or entities that distribute the
produce directly to end users at no cost to those end users.
(e) A farmer selling produce under paragraph (2) or (3) of
subdivision (d) shall provide the individual, organization, or entity
a memorandum that lists the identity of the producer, the address of
the producer, and the identity and quantity of the produce
purchased. A bill of sale or a container label including this
information shall meet the requirements of this subdivision.
SEC. 9. Section 47004 of the Food and Agricultural Code is
repealed.
47004. (a) Certified farmers' markets may establish rules and
procedures that are more restrictive or do not violate state law or
regulation governing or implementing this chapter.
(b) Certified farmers' markets are locations established in
accordance with local ordinances, where California farmers may
transport and sell to the public California agricultural products
that they produced, that are exempt from the established grade, size,
labeling, packaging and other such requirements for fruits, nuts,
and vegetables, and operated in accordance with this chapter and
regulations adopted pursuant to this chapter.
(c) The governing body of any certified farmers' market operating
with more than one participating certified producer shall adopt
written rules and procedures pertaining to the operation of the
market. The rules shall include a requirement that the governing body
and its designated agents establish, implement, and enforce all
rules and procedures pertaining to the operation of the certified
farmers' market in a fair, nondiscriminatory, and equitable manner.
SEC. 10. Section 47004 is added to the Food and Agricultural Code,
to read:
47004. (a) Certified farmers' markets are California agricultural
product outlets that are registered under the provisions of Section
47020 and operated in accordance with this chapter and regulations
adopted pursuant to this chapter.
(b) The operator of a certified farmers' market shall establish a
clearly defined marketing area where only agricultural products may
be sold. Only the producer or the lawful authorized representative of
the producer may sell agricultural products within the area defined
as a certified farmers' market. No sales of agricultural products
purchased from another individual or entity shall occur within a
certified farmers' market, and no agricultural product producer or
product dealer may sell his or her agricultural products to another
individual or entity with the understanding or knowledge that the
products are intended to be resold in a certified farmers' market in
violation of the provisions of this chapter or the regulations
adopted pursuant thereto. Every producer selling within a certified
farmers' market shall be registered with the state as a direct
marketing producer, and shall have submitted to the state all
documentation and paid all fees required by Section 47001.5.
(c) All vendors of agricultural products selling within a
certified farmers' market shall do all of the following:
(1) Post conspicuous signs or banners that state the name of the
farm or ranch, the city where the farm or ranch is located, the
county where the farm or ranch is located, and the direct marketing
producer's registration number.
(2) Post conspicuous signs or banners that state, "We Grew What We
Are Selling" or "We Raised What We Are Selling" or "We Grow What We
Sell" or similar phrases that shall represent that the farm or ranch
is only selling California agricultural products that they themselves
have grown or raised on California land that they possess or
control.
(3) Ensure that all processed agricultural products that they
offer for sale state in a clear manner by package label or container
label or bulk sales signage that they consist only, with the
exception of incidental flavorings and necessary preservatives, of
California agricultural products grown or raised by the farm or ranch
selling them, and the farm or ranch name and the city where the farm
or ranch is located. In addition, every processed product shall
identify on its package label or container label or on bulk sales
signage the registration number of the facility where the food was
processed in accordance with Section 110460 of the Health and Safety
Code or, in the case of meat products, the identity of the facility
where the meat products were cut and wrapped in accordance with the
United States Department of Agriculture or State of California
inspection standards or, in the case of dairy products, the identity
of the facility where the dairy products were manufactured or
processed.
(4) Ensure all products being represented or offered for sale as
organic are clearly labeled or have conspicuous and posted
point-of-sale signage identifying the products as organic.
(d) The representations required in subdivision (c) shall be
subject to the provisions and penalties specified in Section 890.
(e) An operator of a certified farmers' market that also operates,
manages, or otherwise controls a separate sales activity or vending
event or marketing area in close proximity, adjacent, or contiguous
to the operator's certified farmers' market, shall not allow the sale
or distribution of fresh whole produce by vendors selling within the
sales activity or vending event or marketing area, with the
exception of fresh whole produce considered tropical and not
generally grown in California.
(f) The operator of a certified farmers' market shall keep an
accurate participation record of the individual direct marketing
producers whose agricultural products were presented for sale in
their market each market day. The operators shall submit to the
department a quarterly report of the registration numbers and
participation frequency of the direct marketing producers whose
agricultural products were presented for sale in the operator's
market during that past quarter. The department shall create and
maintain online capability for reporting.
(g) Operators of certified farmers' markets may establish rules
and procedures that are more restrictive and stringent than state
laws or regulations governing or implementing this chapter, so long
as the rules and procedures are not in conflict with state laws or
regulations.
(h) Except for certified farmers' markets operated by government
agencies, nonprofit entities and other qualified operators of
certified farmers' markets shall be considered private entities and
may take actions, adopt rules, and impose requirements they deem
necessary for the proper and honest operation of their market,
subject to the application of any state or other laws. Government
agency operators of certified farmers markets are subject to
applicable state laws, the laws of their agency, and any other laws
governing the conduct and actions they may take as an agency of
government.
SEC. 11. Section 47004.1 of the Food and Agricultural Code is
repealed.
47004.1. (a) Any certified producer aggrieved by a rule or
procedure of a certified farmers' market may submit a written request
to the department for an advisory opinion as to whether, as a
question of law, the rule or procedure in dispute is consistent with
this chapter and the regulations implementing this chapter. Not later
than 15 calendar days after the date on which the written request is
received, the department shall undertake its review and issue an
advisory opinion. The request for and issuance of an advisory opinion
is not a prerequisite to the pursuit of any civil litigation.
However, the advisory opinion shall be given substantial weight in
any subsequent civil or administrative proceeding involving the
parties and subject matter of the advisory opinion. The department
may adopt regulations providing for the precedent value of its
advisory opinions issued pursuant to this section. Notwithstanding
any other provision of law, the department shall not incur liability
in connection with the preparation and issuance of any advisory
opinion issued pursuant to this section.
(b) The department shall provide for an informal hearing pursuant
to Article 10 (commencing with Section 11445.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code, with regard
to any grievance of a certified producer involving questions of fact
concerning any action taken by a certified farmers' market against
the producer, or any implementation of a rule or procedure
established by certified farmers' market against the producer, or
any other related issue, as
to whether application of the rule or procedure in dispute is
consistent with this chapter and the regulations implementing this
chapter. The informal hearing shall proceed without the option of
conversion to a formal hearing. The request for an informal hearing
to resolve issues involving disputes of fact is not a prerequisite to
the pursuit of any civil litigation.
(c) In addition to, or in lieu of, the alternatives set forth in
subdivisions (a) and (b), the parties may agree to employ mediation.
If mediation fails to resolve the dispute, the parties may agree to
employ binding arbitration. The department and the county
agricultural commissioners shall incur no expense or liability for
mediation or binding arbitration.
SEC. 12. Section 47010 of the Food and Agricultural Code is
amended to read:
47010. (a) The secretary shall may
establish a committee which that shall
be known as the Certified Farmers' Market Advisory Committee. The
primary goal of the committee shall be to ensure the integrity of
certified farmers' markets.
(b) The committee shall be composed of 17 members and their
alternates. The secretary shall appoint the members of the committee
from a list of nominees provided by the industry subject to this
chapter. The secretary shall appoint eight members and their
alternates who shall be active certified producers, four members and
their alternates who shall be certified farmers' market managers or
representatives, two representatives from different major state
direct marketing associations, one public member, and two members and
their alternates who shall be county agricultural commissioners. An
alternate member shall serve at a committee meeting only in the
absence of, and shall have the same powers and duties as, the member
for whom he or she is designated as alternate.
(c) The secretary shall appoint only one certified producer,
certified farmers' market manager, or representative to represent any
one farm or certified farmers' market and shall make every effort to
ensure that there is a diverse representation from major production
and market areas.
(d) The committee shall meet at the request of the secretary, the
committee chairperson, or upon the request of four committee members.
It shall meet at least once each year.
(e) The committee shall appoint its own officers, including a
chairperson, a vice chairperson, a secretary, and any other officers
it deems necessary. The committee may adopt rules that it deems are
necessary for the conduct of its meetings and functions to carry out
the objectives of this chapter.
SEC. 13. Section 47011 of the Food and Agricultural Code is
amended to read:
47011. The committee shall be advisory to the secretary on all
matters pertaining to direct marketing of agricultural products at
certified farmers' markets and may make recommendations including,
but not limited to, the following:
(a) The amendment, repeal, or adoption of legislation and
regulations that relate to the administration and enforcement of
the provision of this chapter pertaining to
certified farmers' markets .
(b) Administrative policies and procedures that relate to the
inspection of certified producers and certified farmers' markets.
(c) Administrative civil penalties for violations of
direct marketing certified farmers' market
regulations.
(d) Certification fees collected pursuant to Section 47020.
(e) Statewide review of certified farmers' market
enforcement actions.
(f) The annual budget of the department to carry out this chapter
and the assessment of fees to pay for the costs incurred by the
department to carry out the provisions of this chapter
relating to farmers' markets .
(g) Alternative strategies for certification and investigation
methodology, and methods for industry self-regulation and commission
formation.
SEC. 14. Section 47014 is added to the Food and Agricultural Code,
to read:
47014. This article shall remain in effect only until January 1,
2015, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2015, deletes or extends
that date.
SEC. 15. Section 47020 of the Food and Agricultural Code is
repealed.
47020. (a) A certified farmers' market certificate issued by a
county agricultural commissioner shall be valid for 12 months from
the date of issue. The county agricultural commissioner shall inspect
every certified farmers' market within his or her jurisdiction at
least once, in every six months of operation. The county agricultural
commissioner may charge a certification and inspection fee up to a
maximum rate of sixty dollars ($60) per hour, unless the county board
of supervisors elects not to charge inspection and certificate
costs. Inspections shall be required notwithstanding a county board
of supervisors' election not to charge certificate and inspection
fees. If a fee is charged for conducting the certification and
inspection, it shall include either the itemized actual costs, or the
weighted average hourly rate, as determined on an annual basis by
the county, which shall be provided to the certified farmers' market
manager prior to the payment of the fee.
(b) A certified producer's certificate issued by a county
agricultural commissioner may be valid for up to 12 months from the
date of issue. The county agricultural commissioner in each county
shall perform at least one annual onsite inspection of the property
or properties listed on every certified producer's certificate issued
in their county to verify production of the commodities listed on
the certificate or the existence in storage of the harvested
production, or both. If the certificate is issued for a period of
seven months or more, the county agricultural commissioner in each
county shall perform at least one additional onsite inspection or
other equally appropriate measure to verify production or storage, or
both. The county agricultural commissioner may charge a certificate
and inspection fee up to a maximum rate of sixty dollars ($60) per
hour, unless the county board of supervisors elects not to charge
inspection and certificate costs. Inspections shall be required
notwithstanding a county board of supervisors' election not to charge
certificate and inspection fees. If a fee is charged for conducting
the certification and inspection, it shall include either the
itemized actual costs, or the weighted average hourly rate, as
determined on an annual basis by the county, which shall be provided
to the producer prior to the payment of the fee.
(c) Renewal of a certified farmers' market certificate or
certified producer's certificate may be denied by either the
department or a county agricultural commissioner if a certified
farmers' market or a certified producer is delinquent in the payment
of the required state fee or any county certification and inspection
fee or administrative civil penalty authorized under this chapter.
The certificate shall be eligible for renewal when all outstanding
balances and associated penalties or administrative fines have been
paid to the department or the respective county or counties.
SEC. 16. Section 47020 is added to the Food and Agricultural Code,
to read:
47020. (a) An operator of a certified farmers' market shall
annually register with the department the times and location of the
market, the name and contact information for the operator of the
market, and the agent for service of process for the operator. Upon
completion of a proper application, the agricultural commissioner
shall issue to the operator a certified farmers' market certificate.
(b) A certified farmers' market certificate issued by a county
agricultural commissioner shall be valid for 12 months from the date
of issue and may be renewed annually thereafter. The county
agricultural commissioner shall inspect every certified farmers'
market within his or her jurisdiction at least once in every six
months of operation. The county agricultural commissioner shall
provide an estimate of expenses for inspections at the time of
application or renewal and may charge a certification and inspection
fee reflecting or equal to the actual expenses incurred.
(c) (1) Any registered direct marketing producer wishing to sell
at a certified farmers' market shall apply and register with the
department and obtain a certified producer's certificate. All
certified producer certificates will be assigned one or more
permanent registration numbers representing the farm or ranch for
each county where the farm or ranch is located. These registration
numbers shall correspond with or incorporate numerically the
registered direct market producer numbers.
(2) In addition to business contact information for the producer,
the certificate shall also include the Global Positioning System
(GPS) convertible physical addresses and acreage for the locations in
each county where they produce or raise the agricultural product
they sell or intend to sell directly to the public, and the
GPS-convertible physical addresses of any off-farm locations where
the products are or will be stored before they are sold directly to
the public.
(3) Each certified producer farming fruit, vegetables, nuts,
herbs, and similar crops shall annually submit to the department
pertinent information about the specific crops that they will harvest
or intend to harvest for sales directly to the public.
(4) Each certified producer that sells or intends to sell any
processed agricultural product that they produced directly to the
public shall submit to the department a list of each facility where
their production was canned, dried, flavored, preserved, fermented,
juiced, or otherwise processed into the product that they intend to
sell to the public, and the registration number of each facility
where the food was processed in accordance with Section 110460 of the
Health and Safety Code.
(5) Each certified producer that raises animals for meat, cheese,
eggs, honey, or similar products for sale directly to the public
shall annually submit to the department pertinent general information
about the products produced for sale directly to the public. In the
case of meat products, the producer shall also list the facilities
where their products will be slaughtered, cut, and wrapped in
accordance with USDA or State of California inspection standards in
preparation for sale to the public. In the case of any dairy product,
the producer shall also list the facilities where their product is
manufactured and processed.
(6) All certified producers shall keep general records of
agricultural product sales directly to the end users and memorandum
records of product sales to parties intending to resell or distribute
the product to the public or end users under the provisions of
Section 47002 of this chapter.
(7) A certified producer's certificate issued by a county
agricultural commissioner shall be valid for up to 12 months from the
date of issue and may be renewed annually thereafter. The county
agricultural commissioner in each county shall perform at least one
onsite inspection for all new certified producer certificate
applicants and may perform additional inspections as needed of the
property or properties listed on those certified producers'
certificates issued in their county to verify production of the
commodities being sold at a certified farmers' market or the
existence in storage of the producers' actual harvested production,
or both, of any product being sold at a certified farmers' market.
Where practical or purposeful, verification inspections should be
made when the actual harvest or sale of the commodity in question is
occurring. The county agricultural commissioner shall furnish the
producer an estimate of expenses for certification or inspection at
the time of application or renewal or before any needed additional
verification inspection, and may charge a certification and
inspection fee reflecting or equal to the actual expenses incurred.
(d) Renewal of a certified farmers' market certificate or
certified producer's certificate may be denied by either the
department or a county agricultural commissioner if a certified
farmers' market or a certified producer is delinquent in the payment
of the required state fee or any county certification and inspection
fee or administrative civil penalty authorized under this chapter.
The certificate shall be eligible for renewal when all outstanding
balances and associated penalties or administrative fines have been
paid to the department or the respective county or counties.
SEC. 17. Section 47020.5 is added to the Food and Agricultural
Code, to read:
47020.5. (a) Certified producer consignment sales agreements are
written contractual agreements whereby two California registered
direct marketing producers that are certified to sell at a certified
farmers' market may jointly sell to the public at a certified farmers'
market the agricultural products produced by both producers who are
parties to the agreement. The certified producer consignment sales
agreement shall be embodied in a written document that details the
terms of the agreement. Certified producer consignment sales
agreements may be prohibited by and are otherwise subject to the
rules and conditions of a certified farmers' market operator.
Certified producer consignment sales agreements are valid for use
only and exclusively within certified farmers' markets operating
under and in accordance with provisions of this chapter. The
provisions of Chapter 7 (commencing with Section 56101) of Division
20 shall not apply to certified producer consignment sales
agreements.
(b) For purposes of this chapter, a consignment is an arrangement
resulting from a written agreement in which one registered direct
marketing producer, the consignor, entrusts his or her agricultural
products to another registered direct marketing producer, the
consignee, for sale at a certified farmers' market. The consignee
acts as an agent on behalf of the consignor, a principal, in selling
the products. All laws governing the responsibilities and liabilities
for an agent and principal relationship shall apply. The consignor
shall not give up ownership of the products until their sale to the
consumer or other end user. The terms of the consignment contract
shall be that the consignee agrees to deliver to the consignor a
balance of the proceeds received for any goods sold that has been
reduced by the consignee's fee and expenses, the total of which shall
not be more than 25 percent of the sale proceeds returned to the
consignor. Any goods that have not been sold shall be returned to the
consignor or disposed of in a nonsales transaction manner dictated
by the consignor.
(c) Agricultural products sold at a certified farmers' market
under the terms of a certified producer consignment sales agreement
are subject to the condition that the source of all products at the
point of sale be clearly identified to the public as to the name,
city, and county of the farm or ranch of the party that produced the
product. All the above source representations required to be made to
the public shall be subject to the provisions and penalties of
Section 890.
(d) A certified producer consignment sales agreement shall
annually or seasonally be registered with the department disclosing
the principal address and contact information for each party to the
agreement, a general description of the terms of the agreement, and
the list of the products to be sold under the terms of the agreement.
A registration fee of fifty dollars ($50) shall be paid at the time
of each registration. No party or agent of a party to a certified
producer consignment sales agreement may sell at any certified
farmers' market without fulfilling this registration process. Funds
from fees collected shall be deposited in the Department of Food and
Agriculture Fund and shall be used by the department for the
administration of this section. Administration may include creating
and maintaining an online registration and data filing system, any
coordination expenses incurred relative to meetings and actions of
any domestic direct marketing advisory committee established by the
secretary, and for investigations and prosecution proceedings of
violations of this section pursuant to any properly submitted
complaint or pursuant to information received or detected creating
the necessity for the investigation.
SEC. 18. Section 47021 of the Food and Agricultural Code is
amended to read:
47021. (a) Every operator of a certified farmers' market shall
remit to the department, within 30 days after the end of each
quarter, a program fee equal to the number of
certified producer certificates and other agricultural
producers product vendors participating
and selling goods under the authority and management of the
certified farmers' market operator on each market day for the
entire previous quarter. The fee shall be established by
January 1 of each year by the department upon the receipt of a budget
recommendation from the advisory committee. The fee shall
not exceed sixty be fifty cents
($0.60) ($0.50) for each
certified producer certificate and other individual
agricultural producers participating
product vendor whose products were presented for sale on each
market day. A certified farmers' market operator may
directly recover all or part of the fee from the participating
certified and other agricultural
producers product vendors .
(b) Any operator of a certified farmers' market who fails to pay
the required fee within 30 days after the end of the quarter in which
it is due, shall pay to the department a monthly interest charge on
the unpaid balance and a late penalty charge, to be determined by the
department and not to exceed the maximum amount permitted by law.
(c) All fees collected pursuant to this section shall be deposited
in the Department of Food and Agriculture Fund. The money generated
by the imposition of the fees shall be used, upon appropriation by
the Legislature, by the department, to cover the reasonable costs to
carry out this chapter, including all of the following actions
undertaken by the department:
(1) The coordination of the certified farmers' market
advisory committee or the domestic direct marketing advisory
committee .
(2) The evaluation of county enforcement actions and assistance
with regard to multiple county enforcement problems.
(3) The adoption of regulations to carry out the provisions
of this chapter pertaining to certified farmers' markets
.
(4) Hearing appeals Hearings from
actions taken by county agricultural commissioners
to enforce this chapter.
(5) The review of rules or procedures established by a certified
farmers' market and the issuance of advisory opinions and the
provision of informal hearings pursuant to Section 47004.1 as to
whether the rules or procedures are consistent with this chapter and
implementing regulations.
(6)
(5) The maintenance of a current statewide listing of
certified farmers' markets with schedules of operations and
locations.
(7)
(6) The maintenance of a current statewide listing of
certified producers.
(8)
(7) The dissemination to all certified farmers' markets
information regarding the suspension or revocation of any producer's
certificate and the imposition of administrative penalties.
(9)
(8) Other actions, including the maintenance of special
fund reserves, that are recommended by the certified farmers'
market advisory committee or the domestic direct marketing
advisory committee and approved by the department for the
purpose of carrying out the provisions of this chapter
pertaining to certified farmers' markets .
(d) This section shall remain in effect only until January 1,
2014, 2016, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2014, 2016, deletes or
extends that date.
(e) If this section is no longer in effect, any residual funds
collected and deposited pursuant to subdivision (c) shall be
transferred within the Department of Food and Agriculture Fund and
shall be used in accordance with the provisions of subdivision (c).
SEC. 19. Section 47021.5 is added to the Food and Agricultural
Code, to read:
47021.5. (a) Every operator of a certified farmers' market shall
remit to the department, within 30 days after the end of each
quarter, an investigation and enforcement fee based on the number of
individual agricultural product vendors whose products were presented
for sale on each market day for the entire previous quarter. The
fees shall annually be set on January 1 and shall be based upon the
number of certified farmers' market certificates issued during the
previous year in each county.
(b) For certified farmers' markets located in counties that issued
15 or fewer certified farmers' market certificates, the fee shall be
fifty cents ($0.50) for each individual agricultural product vendor
whose products were presented for sale on each market day.
(c) For certified farmers' markets located in counties that issued
more than 15 but fewer than 40 certified farmers' market
certificates, the fee shall be one dollar ($1) for each individual
agricultural product vendor whose products were presented for sale on
each market day.
(d) For certified farmers' markets located in counties that issued
40 or more certified farmers' market certificates, the fee shall be
one dollar and fifty cents ($1.50) for each individual agricultural
product vendor whose products were presented for sale on each market
day.
(e) Any operator of a certified farmers' market who fails to pay
the required fee within 30 days after the end of the quarter in which
it is due, shall pay to the department a monthly interest charge on
the unpaid balance and a late penalty charge, to be determined by the
department and not to exceed the maximum amount permitted by law.
(f) All fees collected pursuant to this section shall be deposited
in the Department of Food and Agriculture Fund. The money generated
by the imposition of the fees assessed under this section shall be
used exclusively to pursue and conduct investigations and enforcement
actions upon properly filed complaints or pursuant to information
received or detected creating the necessity for the investigation of
any violation of Section 890.
(g) (1) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
(2) If this section is no longer in effect or is repealed or is
not extended by a later enacted statute that is enacted before
January 1, 2016, pursuant to paragraph (1), any residual funds
collected and deposited pursuant to subdivision (d) above shall be
transferred within the Department of Food and Agriculture Fund and
used in accordance with the provisions of subdivision (c) of Section
47021.
SEC. 20. Section 47055 is added to the Food and Agricultural Code,
to read:
47055. (a) A direct marketing producer association is a
membership association in which three or more California producers
may jointly, in a cooperative, labor-sharing and cost-sharing manner,
sell to the public the agricultural products produced by its
members. A direct marketing producer association shall be organized
and documented as an unincorporated association, a limited liability
company, or a corporation whose owner members are composed of
agricultural producer who are registered with the state as direct
marketing producers, and have submitted to the state any
documentation and paid all fees required by this chapter.
(b) On behalf of its members, a direct marketing producer
association may sell the agricultural products produced by the
members to the public. The source of those products shall be clearly
identified to the public, customer, or subscriber as to the name,
city, and county of the farm or ranch of the member that produced the
product. All of the representations required to be made to the
public shall be subject to the provisions and penalties specified in
Section 890.
(c) Subject to Section 47002, any exemption under any existing law
that applies to an agricultural product in the possession, or under
the control, of the individual direct marketing producer members
shall apply to the product that is delivered by the producer members
to the direct marketing producer association and subsequently
distributed, transported, offered for sale, sold, or otherwise
possessed on behalf of its producer members. For purposes of this
chapter, a direct marketing producer association shall be considered
a single marketing entity and its agents shall be treated in the same
manner as lawful agents of the membership.
(d) A direct marketing producer association shall annually
register with the department the principal address and contact
information for the association, and the contact information for its
agent for service of process. An annual registration fee of one
hundred dollars ($100) shall be paid at the time of registration. A
direct marketing producer association shall not operate under the
provisions of this chapter without fulfilling the annual registration
process. Funds from the fees collected shall be deposited in the
Department of Food and Agriculture Fund and shall be used by the
department for the administration of this section. Administration may
include creating and maintaining an online registration and data
filing system, coordination expenses incurred relative to meetings
and actions of the domestic direct marketing advisory committee, and
investigations pursuant to any properly submitted complaint or
pursuant to information received or detected creating the necessity
for the investigation.
(e) A direct marketing producer association, when operating an
agricultural products outlet on behalf of its members at a location
permitted by local ordinances and in accordance with this section,
shall be considered a certified farmers' market for permitting and
enforcement purposes under the applicable provisions of the Health
and Safety Code.
(f) A direct marketing producer association when operating a
community-supported agriculture (CSA) sales and delivery business on
behalf of its members in accordance with this chapter, shall be
considered and defined as a CSA for permitting and enforcement
purposes under the applicable provisions of this chapter and any
applicable provisions of the Health and Safety Code.
SEC. 21. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, 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.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.