BILL NUMBER: AB 1826 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 5, 2016
AMENDED IN ASSEMBLY MARCH 17, 2016
INTRODUCED BY Assembly Member Mark Stone
FEBRUARY 8, 2016
An act to repeal and add Chapter 10 (commencing with Section
46000) of Division 17 of the Food and Agricultural Code, and to amend
Sections 110810, 110812, 110860, 110920, and 110925
110875, and 110920 of, to repeal Section 110870
of, and to repeal and add Sections 110815, 110875,
110815 and 110958 of, the Health and Safety Code,
relating to organic products.
LEGISLATIVE COUNSEL'S DIGEST
AB 1826, as amended, Mark Stone. Organic products.
Existing law, the California Organic Products Act of 2003 (the
act), requires the Secretary of Food and Agriculture, county
agricultural commissioners under the supervision and direction of the
secretary, and the Director of the State Department of Public Health
to enforce federal regulations governing the production, labeling,
and marketing of organic products, as specified. The act requires
certain persons engaged in the production, processing, or handling of
organic products to annually register and pay a fee, as specified,
and imposes penalties for specified violations of the act.
Existing federal law establishes the National Organic Program
which requires operations that produce or handle organic agricultural
products to comply with federal organic standards and be certified
by a certifying agent, as specified.
This bill would revise and recast the California Organic Products
Act of 2003 as the California Organic Food and Farming Act. The bill
would specify that a person certified pursuant to the National
Organic Program shall be deemed registered for purposes of the
state organic program State Organic Program
and that those operations do not require additional
registration under the state law. The bill would require all other
persons engaged in the production or handling of raw agricultural
products sold as organic and retailers engaged in the production and
processing of organic products to register with the county
agricultural commissioner in the county of principal operation. The
bill would require the secretary, in consultation with the California
Organic Products Advisory Committee, to establish a registration fee
for producers, handlers, retail food establishments, and certifying
agents, agencies, and would authorize
the secretary to establish an annual fee for the purpose of funding
activities authorized under the act based on gross annual organic
sales. To the extent this bill would impose additional duties on
county agricultural commissioners, the bill would impose a
state-mandated local program.
The bill would require the secretary to establish a memorandum of
understanding with the director to assist in administering the
state organic program, State Organic Program,
would authorize the secretary to establish procedures for and
conduct specified activities to supplement enforcement of National
Organic Program standards, as specified, and to use state
organic program State Organic Program funds to
conduct specified activities.
Existing law requires the director to enforce regulations
promulgated by the National Organic Program relating to organic
products.
This bill would state that certification under the National
Organic Program shall be deemed registration for purposes of the
state organic program. The bill would require fees and
penalties collected pursuant to the act for those purposes to be
deposited into a separate subaccount of the Food Safety Account
rather than the General Fund. State Organic Program.
The bill would , among other things, revise
information that the director is required to annually compile,
publish, and submit to the California Organic Products Advisory
Committee.
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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
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) The state organic program State
Organic Program was first established under the California
Organic Products Act of 1990 and amended in the California Organic
Products Act of 2003. The state organic program
State Organic Program was developed before and during the
development of federal organic standards. Today, a robust federal
organic certification and enforcement program exists.
(b) As a result of the state organic program,
State Organic Program, California certified organic
producers pay more fees, are subject to duplicate registration and
extra documentation, and are required to comply with more regulation
than producers outside of California to use the same organic label.
(c) As a result of the state organic program,
State Organic Program, the National Organic Program
focuses its enforcement funds outside of California, and it relies on
the state organic program's State Organic
Program's additional fees on California producers to fund
enforcement in California.
(d) The purpose of amending the existing law governing the
state organic program State Organic Program
is to reform fees and paperwork and to create a framework
whereby state organic program enforcement activities are designed to
supplement National Organic Program-funded enforcement in California.
SEC. 2. Chapter 10 (commencing with Section 46000) of Division 17
of the Food and Agricultural Code is repealed.
SEC. 3. Chapter 10 (commencing with Section 46000) is added to
Division 17 of the Food and Agricultural Code, to read:
CHAPTER 10. CALIFORNIA ORGANIC FOOD AND FARMING ACT
Article 1. General Provisions
46000. (a) This chapter and Article 7 (commencing with Section
110810) of Chapter 5 of Part 5 of Division 104 of the Health and
Safety Code shall be known and may be cited as the California Organic
Food and Farming Act.
(b) The secretary and county agricultural commissioners under the
supervision and direction of the secretary shall enforce regulations
adopted by the National Organic Program (NOP) (Section 6517 of the
federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et
seq.)), and Article 7 (commencing with Section 110810) of Chapter 5
of Part 5 of Division 104 of the Health and Safety Code and this act
applicable to any person selling products as organic.
(c) This chapter shall be interpreted in conjunction with Article
7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division
104 of the Health and Safety Code and regulations adopted by the
National Organic Program (Section 6517 of the federal Organic Foods
Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)).
46001. For purposes of this act, the following terms have the
following meanings:
(a) "Accredited certification agency" means an entity accredited
by the United States Department of Agriculture to certify operations
as compliant with the federal organic standards.
(b) "Act" means the California Organic Food and Farming Act.
(c) "Categorical products" means categories of products of like
commodity such as apples and salad products, and does not require
variety specific information.
(d) "Certified operation" means a producer, handler, or retail
food establishment that is certified organic by an accredited
certification agency as authorized by the federal Organic Foods
Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.) and implemented
pursuant to the National Organic Program.
(e) "Data" means the information provided annually by persons
registered under the act, including certified organic acreage and
gross sales of certified organic products.
(f) "Department" means the State Department of Public Health.
(g) "Director" means the director and State Public Health Officer
for the State Department of Public Health.
(h) "Enforcement authority" means the governmental unit with
primary enforcement jurisdiction, as provided in Section 46022.
(i) "Exempt handler" means a handling operation that sells
agricultural products as "organic" but whose gross agricultural
income from organic sales totals five thousand dollars ($5,000) or
less annually.
(j) "Exempt operation" means a production or handling operation
that sells agricultural products but is exempt from certification
under federal organic standards.
(k) "Exempt producer" means a production operation that sells
agricultural products as "organic" but whose gross agricultural
income from organic sales totals five thousand dollars ($5,000) or
less annually.
(l) "Federal organic standards" means the federal regulations
governing production, labeling, and marketing of organic products as
authorized by the federal Organic Foods Production Act of 1990 (7
U.S.C. Sec. 6501 et seq.) and implemented pursuant to the National
Organic Program (7 C.F.R. Sec. 205 et seq.), and any amendments to
the federal act or regulations made subsequent to the enactment of
this chapter.
(m) "Handle" means to sell, process, or package agricultural
products. Handle does not include a producer selling,
transporting, or delivering his or her crops or livestock to a
handler.
(n) "Handler" means any person engaged in the business of handling
agricultural products, but does not include final retailers of
agricultural products that do not process agricultural products.
(o) "Handling operation" means any operation or portion of an
operation, except final retailers of agricultural products that do
not process agricultural products that (1) receives or otherwise
acquires agricultural products, and (2) processes, packages, or
stores agricultural products.
(p) "Inspection" means the act of examining and evaluating a
production or handling operation to determine compliance with state
and federal law.
(q) "National Organic Program" or "NOP" means the National Organic
Program established pursuant to the federal Organic Foods Production
Act of 1990 (7 U.S.C. Sec. 6501 et seq.) and the regulations adopted
for implementation.
(r) "Person" means any individual, firm, partnership, trust,
corporation, limited liability company, company, estate, public or
private institution, association, organization, group, city, county,
city and county, political subdivision of this state, other
governmental agency within the state, and any representative, agent,
or agency of any of the foregoing.
(s) "Processing" means cooking, baking, heating, drying, mixing,
grinding, churning, separating, extracting, cutting, fermenting,
eviscerating, preserving, dehydrating, freezing, or otherwise
manufacturing, and includes packaging, canning, jarring, or otherwise
enclosing food in a container.
(t) "Producer" means a person who engages in the business of
growing or producing food, fiber, feed, and other agricultural-based
consumer products.
(u) "Prohibited substance" means a substance the use of which in
any aspect of organic production or handling is prohibited or not
provided for in state or federal law.
(v) "Residue testing" means an official or validated analytical
procedure that detects, identifies, and measures the presence of
chemical substances, their metabolites, or degradation products in or
on raw or processed agricultural products.
(w) "Retail food establishment" means a restaurant, delicatessen,
bakery, grocery store, or any retail outlet with an in-store
restaurant, delicatessen, bakery, salad bar, or other eat-in or
carry-out service of processed or prepared raw and ready-to-eat-food.
(x) "Secretary" means the Secretary of Food and Agriculture.
(y) "State Organic Program" or "SOP" means a state program that
meets the requirements of Section 6506 of the federal Organic Foods
Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.), is approved by
the Secretary of the United States Department of Agriculture, and is
designed to ensure that a product that is sold or labeled as
organically produced under the federal Organic Foods Production Act
of 1990 is produced and handled using organic methods.
(y)
(z) "USDA" means the United States Department of
Agriculture.
46002. (a) All organic food or product regulations and any
amendments to those regulations adopted pursuant to the federal
Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.),
that are in effect on the date this act is enacted or that are
adopted after that date, shall be the organic food and product
regulations of this state.
(b) The secretary may, by regulation, prescribe conditions under
which organic foods or other products not addressed by the National
Organic Program may be sold in this state.
(c) The purpose of the state organic program
State Organic Program shall be to do the following:
(1) Supplement the National Organic Program enforcement of federal
organic standards.
(2) Promote coordination of federal, state, and local agencies in
implementation of the National Organic Program.
(3) Expand, improve, and protect the production of organic
products.
(4) Assist operations in achieving organic certification.
(5) Provide technical assistance, education, outreach, and
guidance to the organic industry.
(d) The secretary may receive and expend state and federal funds
for activities authorized under this act.
Article 2. Administration
46011. (a) The secretary shall establish a memorandum of
understanding with the director to assist in the administration of
the state organic program State Organic
Program and responsibilities authorized under this act.
(b) The secretary may contract with county agricultural
commissioners to implement this act.
46012. (a) To the extent that funds are available, the secretary,
in consultation with the advisory committee established pursuant to
Section 46014, may establish procedures for and conduct the following
activities to supplement enforcement of NOP standards in the state:
(1) Receive and investigate complaints filed by any person
concerning suspected acts of noncompliance with this act or federal
organic standards.
(2) Conduct periodic spot inspections.
(3) Conduct periodic prohibited material
substance testing on products labeled as organic to supplement
the Department of Pesticide Regulation residue testing program
authorized in Section 12532, the pesticide residue monitoring program
on processed foods authorized by Article 1 (commencing with Section
110425) of Chapter 5 of Part 5 of Division 104 of the Health and
Safety Code, and annual testing conducted by accredited certification
agencies.
(4) Conduct farmers' market inspections to supplement those
conducted under the certified farmers' market program pursuant to
Chapter 10.5 (commencing with Section 47000).
(b) Investigation, inspection, and prohibited material testing
reports shall be forwarded to the secretary or to NOP for any
required enforcement action.
(c) The secretary shall coordinate state organic program
State Organic Program activities authorized
under this section with other county and state licensing,
registration, inspection, and fee collection procedures applicable to
registrants.
46013. To the extent funds are available, the secretary may, in
consultation with the advisory committee, use state organic program
funds to conduct the following activities:
(a) Expand, improve, and protect the production of organic
products.
(b) Assist operations in achieving organic certification,
including transition to organic.
(c) Provide technical assistance, education, outreach, and
guidance to the organic industry.
46014. (a) The secretary shall establish an advisory committee,
which shall be known as the California Organic Products Advisory
Committee, for the purpose of advising the secretary with respect to
his or her responsibilities under this act and Article 7 (commencing
with Section 110810) of Chapter 5 of Part 5 of Division 104 of the
Health and Safety Code.
(b) An advisory committee established under this chapter shall
also advise the secretary, the University of California, and the
California State University on education, outreach, and technical
assistance for organic producers.
(c) The advisory committee shall be comprised of 16 members as
follows:
(1) Six members shall be producers, at least one of whom shall be
a producer of meat, fowl, fish, dairy products, or eggs.
(2) Two members shall be processors.
(3) One member shall be a wholesale distributor.
(4) One member shall be a representative of an accredited
certification agency operating in the state.
(5) One member shall be a consumer representatives.
(6) One member shall be an environmental representative.
(7) Two members shall be technical representatives with scientific
credentials related to agriculture or food science.
(8) One member shall be a food retail establishment
representative.
(9) One member shall be a representative from the University of
California or California State University system.
(d) Except for the accredited certification agency,
consumer, environmental, technical, and University of
California or California State University system representatives, the
members of the advisory committee shall have derived a substantial
portion of their business income, wages, or salary as a result of
services they provide that directly result in the production,
handling, processing, or retailing of products sold as organic for at
least three years preceding their appointment to the advisory
committee.
(e) The consumer and environmental representatives shall not have
a financial interest in the direct sales or marketing of the organic
product industry and shall be members or employees of representatives
of recognized nonprofit organizations whose principal purpose is the
protection of consumer health or protection of the environment.
(f) The technical and University of California or California State
University system representatives shall not have a financial
interest in the production, handling, processing, or marketing of the
organic products industry. The technical and university system
representatives may be involved in organic research or technical
review providing they have no financial benefit from results of the
research project or technical review.
(g) (1) Each member of the committee may have an alternate who
satisfies the same requirements as the member.
(2) An alternate member shall serve at an advisory committee
meeting only in the absence of, and shall have the same powers and
duties as, the category whom he or she is representing as alternate,
except for duties and powers as an officer of the committee. The
number of alternates present who are not serving in the capacity of a
member shall not be considered in determining a quorum.
(3) An alternate member may serve at an advisory committee
subcommittee meeting only in the absence of, and shall have the same
powers and duties as, the member whom he or she is designated as
alternate, except for duties and powers as a subcommittee
chairperson.
(h) The members of the advisory committee and their alternates
shall be reimbursed for the reasonable expenses actually incurred in
the performance of their duties, as determined by the advisory
committee and approved by the secretary. The secretary may authorize
payment of per diem to each attendee based on a recommendation of the
advisory committee.
(i) The secretary or his or her representative, the director or
his or her representative, the director of the Department of
Pesticide Regulation or his or her representative, and a county
agricultural commissioner may serve as ex officio members of the
advisory committee.
(j) The advisory committee shall review and make recommendations
to the secretary and the director on the state organic program
budget, including all fee revenues and penalties assessed from exempt
operations, accredited certification agencies, and retail food
establishments, and all expenses of the program.
(k) The advisory committee shall meet at least two times annually
and submit an annual report to the secretary that summarizes issues
for organic agriculture and food production in the state.
Article 3. Registration
46021. (a) Except as specified in subdivision (b), a person
engaged in this state in the production or handling of raw
agricultural products sold as organic, and retailers that are engaged
in the production of products sold as organic, and retailers that
are engaged in the processing, as defined by the NOP, of products
sold as organic, shall register with the county agricultural
commissioner in the county of principal operation before the first
sale of the product. All processors of organic agriculturally derived
products that are not required to be registered with the director
under Article 7 (commencing with Section 110810) of Chapter 5 of Part
5 of Division 104 of the Health and Safety Code shall register with
the secretary. Each registrant shall provide a complete copy of its
registration to the county agricultural commissioner in any county in
which the registrant operates.
(b) A person certified under the National Organic Program shall be
deemed registered and shall not be required to register pursuant to
subdivision (a).
(c) The secretary, in consultation with the advisory committee,
shall establish procedures for registration and information required
for registration.
(d) Registration pursuant to this section shall be valid for one
year and shall be renewed annually.
46022. (a) This act shall not apply to the term "natural" when
used in the labeling or advertising of a product.
(b) This act also applies to seed, fiber, and horticultural
products. The terms "foods" and "raw agricultural commodities" as
used in this chapter include seed, fiber, and horticultural products
where the context requires to effectuate this section.
(c) Article 14 (commencing with Section 43031) of Chapter 2
applies to any food product that is represented as organically
produced by any person who is not registered as required by this
chapter or any product that is not in compliance with this chapter or
Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of
Division 104 of the Health and Safety Code. The secretary, county
agricultural commissioners, and the director shall be considered
enforcing officers for purposes of those provisions of law under
their respective jurisdiction.
46023. (a) To the extent feasible, the secretary shall coordinate
the registration and fee collection procedures of this section with
similar licensing or registration procedures applicable to
registrants.
(b) The secretary or county agricultural commissioner shall deny a
registration submission that is incomplete or not in compliance with
this act.
(c) A registrant shall, within a reasonable time, notify the
secretary of any change in the information reported on the
registration form and shall pay any additional fee owed if that
change results in a higher fee owed than that previously paid.
(d) At the request of any person, the public information sheet for
any registrant shall be made available for inspection and copying at
the main office of the department and each county agricultural
commissioner. Copies of the "public information sheet" shall also be
made available by mail, upon written request. The secretary or county
agricultural commissioner may charge a reasonable fee for the cost
of reproducing a "public information sheet." Except as provided in
this subdivision, a registration form is exempt from Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code.
(e) The secretary, in consultation with the California Organic
Products Advisory Committee, may suspend the registration program set
forth in this section if the secretary determines that income
derived from registration fees is insufficient to support a
registration enforcement program.
(f) A registration is considered legal and valid until revoked,
suspended, or until the expiration of the registration.
(g) The registration revocation process shall be in conjunction
with other provisions of this chapter. The secretary or county
agricultural commissioner's office may initiate the revocation
process for failure to comply with the NOP or this act. Any person
against whom the action is being taken shall have the opportunity to
appeal the action and be afforded the opportunity to be heard in an
administrative appeal. This appeal shall be administered by either
the state or county agricultural commissioner's office.
(h) When the registration fee is not paid within 60 days from the
expiration date, the account shall be considered closed and the
registration voided. A notification shall be sent to the registrant
and the certifier, if applicable, notifying them the registrant is no
longer able to market products as organic until the account is paid
in full.
(i) Any producer, handler, processor, or certification agency
subject to this chapter that does not pay the fee within 10 days of
the date on which the fee is due and payable shall pay a penalty of
10 percent of the total amount determined to be due plus interest at
the rate of 1.5 percent per month on the unpaid balance.
46024. (a) Any certification organization
agency that certifies product in this state sold as organic
shall register with the secretary and shall thereafter annually renew
the registration, unless the organization
certification agency is no longer engaged in the activities
requiring the registration. Registration shall be on a form provided
by the secretary, and shall include a copy of accreditation by the
USDA or proof of application, if applicable.
(b) For the purpose of conducting activities authorized under this
act, the secretary shall require certifying agents
agencies operating in the state to also
annually submit the information that it submits to the NOP directly
to the state organic program. State Organic
Program. The secretary shall accept the information in the same
format that the certifying agent uses to submit information to the
NOP.
(c) Any registration submitted by a certification
organization agency shall be made available to
the public for inspection and copying. The secretary may audit the
organization's certification agency's
certification procedures and records at any time, but any records of
the certification organization agency
not otherwise required to be disclosed shall be kept confidential by
the secretary.
(d) The secretary and the county agricultural commissioners under
the supervision of the secretary shall, if requested by a sufficient
number of persons to cover the costs of the program in a county as
determined by the secretary, establish a certification program. This
program shall meet all of the requirements of this chapter. In
addition, this program shall meet all of the requirements of the
federal certification program, including federal accreditation.
The secretary shall establish a fee schedule for
participants in this program that covers all of the department's
reasonable costs of the program. A county agricultural
commissioner that conducts a voluntary certification program pursuant
to this section shall establish a fee schedule for participants in
this program that covers all of the county's reasonable costs of the
program. The secretary may not expend funds obtained from
registration fees collected under this chapter for the purposes of
adopting or administering this program.
(e) The certification fee authorized under subdivision (d) is due
and payable on January 1 or may be prorated before the 10th day of
the month following the month in which the decision to grant the
certification is issued. Any person who does not pay the amount that
is due within the required period shall pay the enforcement authority
providing the certificate a penalty of 10 percent of the total
amount determined to be due, plus interest at the rate of 1.5 percent
per month on the unpaid balance.
46025. (a) All products sold as organic in California shall be
certified by a federally accredited certifying agent, if they are
required to be certified under the federal act.
(b) Product shall be sold as organic only in accordance with this
chapter.
(c) A certification organization agency
shall be accredited by the USDA as provided in the NOP.
46026. Materials allowed in organic production and processing are
specified in the Federal Organic Standards (7 C.F.R. Sec. 205 et
seq.). Organic input materials for organic production are regulated
under Chapter 5 (commencing with Section 14501) of Division 7.
Article 4. Fees and Penalties
46031. (a) The secretary, in consultation with the advisory
committee, shall establish a registration fee for producers,
handlers, and retail food establishments that are exempt from
certification under the NOP but who are required to register with the
state pursuant to Section 46021. The registration fee shall not
exceed the reasonable costs of enforcement activities as authorized
under Section 46012 on operations exempt from certification.
certification, up to a maximum of five hundred
dollars ($500).
(b) The secretary, in consultation with the advisory committee,
shall establish a registration fee for certifying agents
agencies operating within the state. The
registration fee shall not exceed the reasonable costs of enforcement
and monitoring of certifying agents.
(c) The secretary, in consultation with the advisory committee,
may establish an annual fee for producers for the purposes
of funding the activities authorized under this act. Any fee
established shall not exceed the following fee schedule for gross
annual organic sales amounts:
+---------------------------+---------------------+
|Gross Annual Organic Sales |Annual Fee Amount |
+---------------------------+---------------------+
| | |
|$0 - 4,999 |$25 |
+---------------------------+---------------------+
| $5,000 - 25,000
| $50
|
+---------------------------+---------------------+
|$ 25,0 0 1 - 250,000
|$100
|
+---------------------------+---------------------+
|$ 250,001 - 500,000 |$450 |
+---------------------------+---------------------+
|$ 500,001 - 1,000,000 |$750 |
+---------------------------+---------------------+
|$ 1,000,001 - 2,500,000 |$1,000 |
+---------------------------+---------------------+
|$ 2,500,001 - 5,000,000 |$1,500 |
+---------------------------+---------------------+
|$ 5,000,001 - 15,000,000 |$2,000 |
+---------------------------+---------------------+
|$ 15,000,001 25,000,000 |$2,500 |
+---------------------------+---------------------+
|$ 25,000,001 and above |$3,000 |
+---------------------------+---------------------+
(d) The secretary, in consultation with the director pursuant to
subdivision (a) of Section 46011, shall coordinate the collection and
expenditure of annual fees. The secretary shall identify certified
organic producers under the enforcement authority of the department
based on the information provided under subdivision (b) of Section
46024 and shall annually bill and collect the applicable annual fee
from the certified organic producers. The secretary shall not require
information other than gross annual organic sales in the billing
forms. The secretary shall forward certified organic producers
identified as subject to enforcement by the department to the
director for billing and fee collection.
46032. (a) The fees and penalties collected by the secretary and
county agricultural commissioners pursuant to this chapter shall be
deposited in the Department of Food and Agricultural
Agriculture Fund and, upon appropriation by the
Legislature, shall be expended solely to fulfill the activities
authorized under this chapter.
(b) By regulation, the secretary may establish procedures to allow
any fees and penalties collected by a county agricultural
commissioner pursuant to Section 46047 and any other penalties
collected by a county agricultural commissioner pursuant to this
chapter to be paid directly to the county agricultural commissioner
and expended to fulfill the responsibilities of the county
agricultural commissioner, as specified in this chapter.
(c) Any person subject to this chapter that does not pay the
registration fee within 10 days of the date on which the fee is due
and payable shall pay a penalty of 10 percent of the total amount
determined to be due plus interest at the rate of 1.5 percent per
month on the unpaid balance.
46033. (a) Any fee established and collected pursuant to this
chapter shall not exceed the department's cost or the county
agricultural commissioner's costs, as the case may be, of regulating
and enforcing the provisions of this chapter related to the function
for which the fee is established.
(b) The fees established and collected pursuant to this chapter
may be expended, under the advisement of the advisory committee, for
activities authorized under this chapter, including assisting
operations in achieving certification, conducting education and
outreach, entering research and development partnerships, and
addressing production or marketing obstacles to the growth of the
organic sector.
Article 5. Enforcement
46041. (a) This chapter shall apply notwithstanding any other law
that is inconsistent with this chapter. Nothing in this chapter is
intended to repeal any other law consistent with this chapter.
(b) Article 14 (commencing with Section 43031) of Chapter 2
applies to any product that is represented as organically produced by
any person who is not registered as required by this chapter or any
product that is not in compliance with this chapter or the NOP.
(c) The secretary, county agricultural commissioners, and the
director shall be considered enforcing officers for purposes of those
provisions of law under their respective jurisdiction.
(d) Any person may file a complaint with the director concerning
suspected noncompliance with this chapter or Article 7 (commencing
with Section 110810) of Chapter 5 of Part 5 of Division 104 of the
Health and Safety Code by a person under the enforcement jurisdiction
of the director, as provided in Section 46000.
subdivision (c).
(e) The director shall, to the extent funds are available,
establish procedures for handling complaints, including provision of
a written complaint form, and procedures for commencing an
investigation within three working days after receiving a complaint
regarding fresh food, and within seven working days for other food,
and completing an investigation and reporting findings and
enforcement action taken, if any, to the complainant within 60 days
thereafter.
(f) The director may establish minimum information requirements to
determine the verifiability of a complaint, and may provide for
rejection of a complaint that does not meet the requirements. The
director shall provide written notice of the reasons for rejection to
the person filing the complaint.
(g) The director shall carry out the functions and objectives of
this chapter and Article 7 (commencing with Section 110810) of
Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, to
the extent funds are available for those purposes.
(h) A certified organic producer shall not be penalized if an
accredited certifying agent fails to meet reporting requirements set
forth in subdivision (b) of Section 46024.
46042. At the request of a county agricultural commissioner, the
district attorney for that county may bring an action to enforce this
act within the enforcement jurisdiction of that commissioner.
46043. (a) Any person may file a complaint with the secretary
concerning suspected noncompliance with this act, as provided in
regulations adopted by the NOP.
(b) The secretary shall, to the extent funds are available,
establish procedures for handling complaints, including provision of
a written complaint form, and procedures for commencing an
investigation within three working days after receiving a complaint
regarding fresh food, and within seven working days for other
products, and completing an investigation and reporting findings and
enforcement action taken, if any, to the complainant within 60 days
thereafter.
(c) The secretary may establish minimum information requirements
to determine the verifiability of a complaint, and may provide for
rejection of a complaint that does not meet the requirements. The
secretary shall provide written notice of the reasons for rejection
to the person filing the complaint.
(d) The secretary shall carry out the functions and objectives of
this chapter to the extent funds are available for those purposes.
(e) The complaint process in this state must also meet
all comply with the complaint process outlined
in regulations adopted by the NOP.
46044. (a) A county agricultural commissioner may, at any time,
initiate a notice and hearing process to determine whether a
violation of these provisions has occurred. The hearing process to
determine if a violation has occurred may include a review of the
actions or records of all of the following:
(1) The organic registrant.
(2) A family member, employee, or any other person authorized to
act on behalf of the registrant.
(3) Any other person whose actions may have resulted in the
violation.
(b) The notice of hearing shall be on a form approved by the
secretary that contains all of the following:
(1) The reasons why the hearing is being held.
(2) A warning that failure to participate may result in other
adverse actions or may be considered to be admission to a possible
violation.
(3) A hearing date, time, and location of the hearing.
(4) The secretary or county agricultural commissioner may, upon
determination that a violation has been made in accordance with
subdivision (a), take any corrective action as specified in this act.
46045. (a) Any person may appeal to the secretary for a hearing
if aggrieved by either of the following actions or decisions:
(1) Denial of any registration.
(2) Revocation of any registration.
(b) The appeal shall be submitted to the secretary in writing
within 30 days of the date the action, or the letter proposing the
action. The secretary's proceeding shall, insofar as practicable,
comply with the provisions of the Administrative Procedure Act
(Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code), except that a department hearing
officer may be used.
46046. As provided for in regulations adopted by the NOP, the
action proposed by a NOP accredited certifier
certification agency against a client may be appealed to the
secretary for mediation.
46047. (a) In lieu of prosecution, the secretary or a county
agricultural commissioner may levy an administrative penalty against
any person under the enforcement jurisdiction of the secretary as
provided in Section 46000 who violates this act, or any regulation
adopted pursuant thereto or pursuant to this chapter, or regulations
adopted by the NOP, in an amount not 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 effectuation of the
purposes and provisions of this chapter and the impact of the penalty
on the violator, including the deterrent effect on future
violations.
(b) Notwithstanding the penalties prescribed in subdivision (a),
if the secretary or county agricultural commissioner finds that a
violation was not intentional, the secretary or county agricultural
commissioner may levy an administrative penalty of not more than two
thousand five hundred dollars ($2,500) for each violation.
(c) For a first offense, in lieu of an administrative penalty as
prescribed in subdivision (a) or (b), the secretary or county
agricultural commissioner may issue a notice of violation if he or
she finds that the violation is minor.
(d) A person against whom an administrative penalty is proposed
shall be afforded an opportunity for a hearing before the secretary
or county agricultural commissioner, upon request made in writing
within 30 days after the issuance of the notice of penalty. At the
hearing, the person shall be given the right to review the secretary'
s or commissioner's evidence of the violation and the right to
present evidence on his or her own behalf. If no hearing is
requested, the administrative penalty shall constitute a final and
nonreviewable order.
(e) If a hearing is held, review of the final decision of the
secretary or county agricultural commissioner may be requested in
writing by any person, pursuant to Section 1094.5 of the Code of
Civil Procedure within 30 days of the date of the final order of the
secretary or county agricultural commissioner.
(f) An administrative penalty levied by the secretary pursuant to
this section may be recovered in a civil action brought in the name
of the state. An administrative penalty levied by a county
agricultural commissioner pursuant to this section may be recovered
in a civil action brought in the name of the county. After the
exhaustion of the review procedures provided in this section, a
county agricultural commissioner, or his or her representative, may
file a certified copy of a final decision of the commissioner that
directs the payment of an administrative penalty and, if applicable,
a copy of any order that denies a petition for a writ of
administrative mandamus with the clerk of the superior court of any
county. Judgment shall be entered immediately by the clerk in
conformity with the decision or order. Pursuant to Section 6103 of
the Government Code, no fees shall be charged by the clerk of the
superior court for the performance of any official service required
in connection with the entry of judgment pursuant to this section.
(g) The secretary shall maintain in a central location, and make
publicly available for inspection and copying upon request, a list of
all administrative penalties levied by the secretary and by each
county agricultural commissioner within the past five years,
including the amount of each penalty, the person against whom the
penalty was levied, and the nature of the violation. Copies of this
list shall also be available by mail, upon written request and
payment of a reasonable fee, as set by the secretary.
46048. The secretary and the county agricultural commissioners
may conduct a program of spot inspections to determine compliance
with this act.
46049. (a) It is unlawful for any person to sell, offer for sale,
advertise, or label any product in violation of this act.
(b) Notwithstanding subdivision (a), a person engaged in business
as a handler, distributor, or retailer of food who in good faith
sells, offers for sale, labels, or advertises any product in reliance
on the representations of a producer, processor, or other
distributor that the product may be sold as organic, shall not be
found to violate this act unless the distributor either:
(1) Knew or should have known that the product could not be sold
as organic.
(2) Was engaged in producing or processing the product.
(3) Prescribed or specified the manner in which the product was
produced or processed.
46050. (a) It is unlawful for any person to certify any product
in violation of this act.
(b) It is unlawful for any person to certify a product or company
as organic unless duly registered as a certification
organization agency pursuant to this act.
(c) It is unlawful for any person to willfully make a false
statement or representation, or knowingly fail to disclose a fact
required to be disclosed, in registration for a certification
organization agency pursuant to this
act.
46051. (a) It is unlawful for any person to produce or handle any
product sold as organic unless duly registered pursuant to Section
46021.
(b) It is unlawful for any person to willfully make a false
statement or representation, or knowingly fail to disclose a fact
required to be disclosed, in registration pursuant to Section 46021.
46052. It is unlawful for any person to forge, falsify, fail to
retain, fail to obtain, or fail to disclose records pursuant to
Section 46055.
46053. (a) It is unlawful for any person to advertise, label, or
otherwise represent that any fertilizer or pesticide chemical may be
used in connection with the production, processing, or distribution
of products sold as organic if that fertilizer or pesticide chemical
contains a prohibited material. substance.
(b) It is unlawful for any person to refuse to submit for
inspection.
(c) It is unlawful for any person to mislabel any organic product.
(d) It is unlawful for any person to alter any organic
registration form.
(e) It is unlawful for any person to alter any certification
document.
(f) It is unlawful for any person to falsify any document.
(g) It is unlawful for any person to remove a hold off sale or
disposal order from any lot of product.
(h) It is unlawful to use the term "transitional organic" in this
state.
46054. No food or product may be advertised or labeled as
"organic when available" or similar terminology that leaves in doubt
whether the food is being sold as organic.
46055. All persons who produce, handle, or retail products that
are sold as organic shall keep accurate and specific records of the
following as applicable:
(a) The quantity harvested from each field or management unit, the
size of the field or management unit, the field number, and the date
of harvest.
(b) Unless the livestock, fowl, or fish was raised or hatched by
the producer, the name and address of all suppliers of livestock,
fowl, or fish and the date of the transaction.
(c) For each field or management unit, all substances applied to
the crop, soil, growing medium, growing area, irrigation or post
harvest wash or rinse water, or seed, the quantity of each substance
applied, and the date of each application. All substances shall be
identified by brand name, if any, and by source.
(d) All substances administered and fed to the animal, including
all feed, medication and drugs, and all substances applied in any
area in which the animal, milk, or eggs are kept, including the
quantity administered or applied, and the date of each application.
All substances shall be identified by brand name, if any, and by
source.
(e) (1) Invoices, bills of lading or other documents that show
transfer of title of certified organic products shall indicate the
product is "organic" or "certified organic" and, if applicable, the
California registration number of the person transferring the
product.
(2) Any person selling product that is exempt or excluded from
certification under NOP rules, must follow the requirements of
Section 205.101 of Title 7 of the Code of Federal Regulations.
(f) All substances applied to the product or used in or around any
area where product is kept including the quantity applied and the
date of each application. All pesticide chemicals shall be identified
by brand name, if any, and by source.
(g) Except when sold to the consumer, the name and address of all
persons, to whom or from whom the product is sold, purchased or
otherwise transferred, the quantity of product sold or otherwise
transferred, and the date of the transaction.
46055. All persons who produce, handle, or retail products sold
as organic and are exempt from organic certification under the
federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et
seq.) shall keep accurate and specific records as required by the
secretary, in consultation with the advisory committee. Certified
organic operations shall keep records required under the federal
organic standards.
46056. (a) Notwithstanding any other law, any producer, handler,
processor, or retailer of product sold as organic shall immediately
make available for inspection by, and shall upon request, within 72
hours of the request, provide a copy to, the secretary, the Attorney
General, any prosecuting attorney, any governmental agency
responsible for enforcing laws related to the production or handling
of products sold as organic, of any record required to be kept under
this section for purposes of carrying out this chapter. Records
acquired pursuant to this chapter shall not be public records as that
term is defined in Section 6252 of the Government Code and shall not
be subject to Chapter 3.5 (commencing with Section 6250) of Division
7 of Title 1 of the Government Code.
(b) Upon written request of any person that establishes cause for
the request, the secretary shall obtain and provide to the requesting
party within 10 working days of the request a copy of any of the
following records required to be kept under this chapter that pertain
to a specific product sold or offered for sale, and that identify
substances applied, administered, or added to that product, except
that financial information about an operation or transaction,
information regarding the quantity of a substance administered or
applied, the date of each administration or application, information
regarding the identity of suppliers or customers, and the quantity or
price of supplies purchased or products sold shall be removed before
disclosure and shall not be released to any person other than
persons and agencies authorized to acquire records under subdivision
(a):
(1) Records of a producer, as described in Section 46056.
(2) Records of a handler, as described in Section 46056, records
of previous handlers, if any, and producers as described in Section
46056 without identifying the previous handlers or producers, and, if
applicable, records obtained as required in this act.
(3) (A) Records of a retailer, as described in Section 46056,
records of previous handlers, if any, and producers as described in
Section 46056 without identifying the previous processors, handlers,
or producers, and, if applicable, records obtained as required in
subdivision (d). This subdivision shall be the exclusive means of
public access to records required to be kept by producers,
processors, handlers, and retailers under this chapter.
(B) A person required to provide records pursuant to a request
under this subdivision, may petition the secretary to deny the
request based on a finding that the request is of a frivolous or
harassing nature. The secretary may, upon the issuance of this
finding, waive the information production requirements of this
subdivision for the specific request for information that was the
subject of the petition.
(c) Information specified in subdivision (b) that is required to
be released upon request shall not be considered a "trade secret"
under Section 110165, Section 1060 of the Evidence Code, or the
Uniform Trade Secrets Act (Title 5 (commencing with Section 3426) of
Part 1 of Division 4 of the Civil Code).
(d) The secretary may charge the person requesting records a
reasonable fee to reimburse himself or herself or the source of the
records for the cost of reproducing the records requested.
(e) The secretary shall not be required to obtain records not in
his or her possession in response to a subpoena. Before releasing
records required to be kept pursuant to this act in response to a
subpoena, the secretary shall delete any information regarding the
identity of suppliers or customers and the quantity or price of
supplies purchased or products sold.
SEC. 4. Section 110810 of the Health and Safety Code is amended to
read:
110810. This article and Chapter 10 (commencing with Section
46000) of Division 17 of the Food and Agricultural Code shall be
known and may be cited as the California Organic Food and Farming
Act.
SEC. 5. Section 110812 of the Health and Safety Code is amended to
read:
110812. The director, in consultation with the Secretary of Food
and Agriculture, shall enforce regulations promulgated by the
National Organic Program (Section 6517 of the federal Organic Foods
Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)), provisions of
this article, and Chapter 10 (commencing with Section 46000) of
Division 17 of the Food and Agricultural Code.
SEC. 6. Section 110815 of the Health and Safety Code is repealed.
SEC. 7. Section 110815 is added to the Health and Safety Code, to
read:
110815. The definitions set forth in Section 46001 of the Food
and Agricultural Code shall apply to this article.
SEC. 8. Section 110860 of the Health and Safety Code is amended to
read:
110860. A registered certification organization
agency or a federally accredited certification
organization agency shall, at least
annually, physically inspect the premises where the food to be
certified is produced and processed. The inspection shall include an
examination of recordkeeping.
SEC. 9. Section 110870 of the Health and Safety Code is repealed.
SEC. 10. Section 110875 of the Health and
Safety Code is repealed.
SEC. 11. Section 110875 is added to the Health
and Safety Code, to read:
110875. A person certified under the National Organic Program
shall be deemed registered for the purposes of the state organic
program, and shall not be required to separately register with the
state.
SEC. 10. Section 110875 of the Health
and Safety Code is amended to read:
110875. (a) Every A person certified
under the National Organic Program shall be deemed registered for the
purposes of the State Organic Program and shall not be required to
separately register with the state.
(b) Every person engaged in this
state in the processing or handling of processed products for human
consumption, including dietary supplements, alcoholic beverages, and
fish or seafood sold as organic (except for processors and handlers
of processed meat, fowl, or dairy products and retailers that are
engaged in the processing or handling of products sold as organic),
and every person engaged in the processing or handling of animal food
and cosmetics sold as organic, shall register with the director, and
shall thereafter annually renew the registration unless no longer so
engaged. Handlers of processed food products that are registered
with the department pursuant to Article 2 (commencing with Section
110460) shall register under this section in conjunction with the
annual renewal of their registration pursuant to that article.
Handlers of organic products that are required to be registered to
manufacture, pack, or hold processed food pursuant to Article 2
(commencing with Section 110460) of Chapter 5 of Part 5 of Division
104, licensed to bottle, vend, haul, or process water pursuant to
Article 12 (commencing with Section 11070) of Chapter 5 of Part 5 of
Division 104, certified to process or handle fresh or frozen seafood
or fresh or frozen raw shellfish pursuant to Chapter 5 (commencing
with Section 112150) of Part 6 of Division 104, licensed to operate a
cold storage facility pursuant to Chapter 6 (commencing with Section
112350) of Part 6 of Division 104, licensed to process low acid
canned foods pursuant to Chapter 8 (commencing with Section 112650)
of Part 6 of Division 104, licensed to manufacture olive oil pursuant
to Chapter 9 (commencing with Section 112875) of Part 6 of Division
104, and licensed or registered to process or hold pet food in
California pursuant to Chapter 10 (commencing with Section 113025) of
Part 6 of Division 104, shall possess a valid registration or
license in order to obtain a valid organic registration for the same
facility under this section. All others required to register under
this subdivision shall register within 30 days of forms being made
available for this purpose. Any processor or handler of processed
products required to register under this subdivision that does not
pay the registration fee required by subdivision (c)
(d) within 30 days of the date on which the fee
is due and payable shall pay a penalty of 11/2 percent per month on
the unpaid balance.
(b)
(c) Registration shall be on a form provided by the
director and shall be valid for a period of one calendar year from
the date of validation of the completed registration form. The
director shall make registration forms available for this purpose.
The information provided on the registration form shall include all
of the following:
(1) The nature of the registrant's business, including the
specific commodities and quantities of each commodity that is handled
and sold as organic.
(2) The total current annual organic gross sales, or if not
selling the product, the total current gross annual revenue received
from processing, packaging, repackaging, labeling, or otherwise
handling organic products for others, in dollars.
(3) The names of all certification organizations and governmental
entities, if any, providing certification to the registrant pursuant
to this article and the regulations adopted by the NOP.
(4) Sufficient information, under penalty of perjury, to enable
the director to verify the amount of the registration fee to be paid
in accordance with subdivision (c). (d).
(c)
(d) To the extent feasible, the director shall
coordinate the registration and fee collection procedures of this
section with similar licensing or registration procedures applicable
to registrants. When coordinating the organic registration with other
required registrations or licenses identified in subdivision
(a), (b), the expiration date shall be
the same expiration date as the valid license or registration. For
persons that hold two-year licenses or registrations pursuant to
subdivision (a), (b), the organic
registration shall be renewed annually using the same expiration
month and day as the two-year license or registration.
(d)
(e) A registration form shall be accompanied by payment
of a nonrefundable registration fee payable to the department by
handlers which that shall be based on
annual gross sales of organic product or annual revenue received from
processing, packaging, repackaging, labeling, or otherwise handling
organic product for others, by the registrant in the calendar year
that precedes the date of registration. If no sales or revenue were
made in the preceding year, then based on the expected sales or
revenue during the 12 calendar months following the date of
registration. Unless specified elsewhere, the fee is based
according to the following schedule:
(f) The director, in consultation with the California Organic
Products Advisory Committee, may establish an annual fee for
processors and handlers for the purpose of funding the activities
authorized under this article, not to exceed the following amounts:
Gross Annual Sales or Annual Registration
Revenue Fee
$0-$5,000 $ 50
$5,001-$50,000 $100
$50,001-$125,000 $200
$125,001-$250,000 $300
$250,001-$500,000 $400
$500,001-$1,500,000 $500
$1,500,001-$2,500,000 $600
$2,500,001-and above $700
(1) Any handler that does not take possession or title of the
product but arranges for the sale of the product shall register and
pay one hundred dollars ($100) per year.
(2) Any person that only provides temporary storage for seven days
or less, or only provides transportation for organic product and
does not handle the processed packaged product, does not have to
register.
(3) Any person that hires any other person to custom pack, repack,
or label organic products shall register and pay a fee based on the
total annual sales of products custom packed, repacked, or labeled
for them as outlined in the chart above.
(e)
(g) Revenue received pursuant to this section shall be
deposited in the Food Safety Fund created pursuant to Section 110050.
(f)
(h) The director shall reject a registration submission
that is incomplete or not in compliance with this article and
regulations promulgated by the NOP.
(g)
(i) The director shall provide a validated certificate
to the registrant.
(h)
(j) Registration forms shall be made available to the
public for inspection and copying at the main office of the
department. Copies of registration forms shall also be made available
by mail, upon written request and payment of a reasonable fee, as
determined by the director. Registration information regarding
quantity of products sold and gross sales volume in dollars shall be
deleted prior to before public
inspection and copying and shall not be released to any person except
other employees of the department, the Department of Food and
Agriculture, a county agricultural commissioner, the Attorney
General, any prosecuting attorney, or any government agency
responsible for enforcing laws related to the activities of the
person subject to this part.
(i)
(k) A registrant shall immediately notify the director
of any change in the information reported on the registration form
and shall pay any additional fee owed if that change results in a
higher fee owed than previously paid.
(j)
( l ) The director in
consultation with the California Organic Products Advisory Committee,
may suspend the registration program set forth in this section if
the director determines that income derived from registration fees is
insufficient to support a registration enforcement program.
(k)
(m) A registration is considered legal and valid until
revoked, suspended, or until the expiration of the registration.
( l )
(n) The registration revocation process must
shall be in conjunction with other provisions of
this article. The director can initiate the revocation process for
failure to comply with this article or any part of the regulations
adopted pursuant to the NOP. Any person against whom the action is
being taken shall have the opportunity to appeal the action and be
afforded the opportunity to be heard in an administrative appeal.
This appeal can be administered by either the state or county
agricultural commissioner's office.
(m)
(o) When the registration fee is not paid within 60
days from the expiration date the account may be considered closed
and the registration voided. A notification will
shall be sent to the registrant and the certifier
will shall notify them that they are no longer
able to market products as organic until the account is paid in full.
(n)
(p) Any registration that is more than 60 days late
will shall be considered invalid and it
is a violation if product is sold as organic.
SEC. 12. SEC. 11. Section 110920 of
the Health and Safety Code is amended to read:
110920. (a) The department shall use funds appropriated by the
Legislature in the annual Budget Act from fees collected pursuant to
Section 46031 of the Food and Agricultural Code to fulfill its
obligations under this article.
(b) No fee established and collected pursuant to this article
shall exceed the department's costs of regulating and enforcing the
provisions of this article related to the function for which the fee
is established.
SEC. 13. Section 110925 of the Health and Safety
Code is amended to read:
110925. Any fees and civil penalties collected pursuant to this
article shall be deposited in a separate organic food safety
subaccount of the Food Safety Account and, upon appropriation by the
Legislature, shall be expended to fulfill the responsibilities of the
director as specified in this article.
SEC. 14. SEC. 12. Section 110958 of
the Health and Safety Code is repealed.
SEC. 15. SEC. 13. Section 110958 is
added to the Health and Safety Code, to read:
110958. (a) Annually, the department shall compile, publish, and
submit to the California Organic Products Advisory Committee a
summary of the following information:
(1) Enforcement actions taken by the department in that fiscal
year.
(2) Accounting revenues received and expended by the department in
implementing this article.
(3) Gross annual sales of organic processed products.
(b) The information shall be presented in an aggregate form that
preserves the confidentiality of proprietary information of
individual businesses.
SEC. 16. SEC. 14. If the Commission
on State Mandates determines that this act contains 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.