BILL ANALYSIS
AB 856
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 856
AUTHOR: Caballero
AMENDED: July 1, 2009
FISCAL: Yes HEARING DATE: July 6, 2009
URGENCY: No CONSULTANT: Caroll
Mortensen
SUBJECT : ORGANIC FERTILIZERS
SUMMARY :
Existing law , pursuant to the Food and Agriculture Code:
1)Establishes a nine-member Fertilizer Inspector Advisory
Board (Board). The members are appointed by the Secretary
of the California Department of Food and Agriculture (CDFA).
The Board is required to meet at least once a year.
2)Requires eight of the members to be subject to licensure
requirements and payment of the inspection fee required
pursuant to Chapter 5 of Division 7, of the Food and
Agriculture Code (Chapter). Requires one member to
represent the public.
3)States that the Board is advisory in nature to the Secretary
on inspection, enforcement, research, education and budget
matters, including fees.
4)Requires the Secretary of CDFA to accept the recommendations
if they are found to be practicable and in the interests of
the fertilizer industry and the public.
5)Requires the Secretary to respond in writing within 15 days
if he or she does not accept the recommendations.
6)Requires manufacturers and distributors of fertilizing
materials, as defined, to obtain a license from CDFA. The
fee for the license shall not exceed $200 (but can be
lowered by the Secretary at the recommendation of the
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Board).
7)Requires a registration fee of up to $200 (currently $100)
per label for certain fertilizer products including
specialty fertilizers, packaged agricultural minerals,
auxiliary soil and plant substances, and packaged soil
amendments (not bulk fertilizer products). The registration
is for the label on the product to ensure it complies with
certain standards and is deemed effective for its intended
use. This fee can also be lowered by the Secretary at the
recommendation of the Board.
8)Requires any licensee whose name appears as the guarantor on
the label who sells or distributes bulk fertilizing
materials or whose name appears on the label of a packaged
fertilizing material to pay an assessment not to exceed two
mills ($0.001) per dollar of sales. This fee can also be
lowered by the Secretary at the recommendation of the Board.
9)Authorizes the Secretary, in addition to the mill assessment
above, to assess a fee not to exceed one mill ($0.0005) per
dollar sale of fertilizing material to provide funding for
research and education regarding the use and handling of
fertilizer. This fee can also be lowered by the Secretary
at the recommendation of the Board.
10)Requires agricultural products derived from municipal
sewage sludge shall be regulated as fertilizing material and
when used in general commerce these products are not subject
to regulations as a hazardous substance or waste.
11)Establishes fines and penalties for violations.
12)Defines the following terms:
a) "Compost" means a biologically stable material derived
from the composting process.
b) "Composting" means the biological decomposition of
organic matter which inhibits pathogens, viable weed
seeds, and odors. Composting may be accomplished by
mixing and piling in a way as to promote aerobic or
anaerobic decay, or both.
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c) "Commercial fertilizer" includes both agricultural and
specialty fertilizers.
d) "Specialty fertilizers" may contain less than 5
percent nitrogen (N), available phosphoric acid (P2O5),
or soluble potash (K2O), singly or collectively.
13)"Fertilizing material" means any commercial fertilizer,
agricultural mineral, auxiliary soil and plant substance,
or packaged soil amendment.
14)Establishes the California Organic Products Act of 2003
overseen by CDFA and the Department of Public Health. The
laws set standards and practices for the production and
handling of organic products. (Health and Safety Code
110810 et seq. and Food and Agriculture Code 46000 et
seq.).
15)Under the California Integrated Waste Management Act (Act)
of 1989:
a) Requires each city or county source reduction and
recycling element to include an implementation schedule
that shows a city or county must divert 25% of solid
waste from landfill disposal or transformation by January
1, 1995, through source reduction, recycling, and
composting activities, and must divert 50% of solid waste
on and after January 1, 2000.
b) Through regulations, sets standards for the use of
biosolids in composting.
16)Under federal law, Part 503 of Vol. 40 of the Code of
Federal Regulations codifies various standards related to
pathogens and metals in biosolids. In California, the 503
rule is enforced through National Pollutant Discharge
Elimination System (NPDES) permits through the State Water
Resources Control Board.
17)Under federal law, establishes the Organic Foods
Production Act of 1990, including the National Organic
Program (NOP) that develops and implements national
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production, handling, and labeling standards for organic
agricultural products. The NOP also accredits the
certifying agents (foreign and domestic) who inspect
organic production and handling operations to certify that
they meet US Department of Food and Agriculture (USDA)
requirements. (7 U.S.C. 6501 et seq.).
This bill :
1)Defines "organic input material" to mean any bulk or
packaged commercial fertilizer, agricultural mineral,
auxiliary soil and plant substance, specialty fertilizer, or
soil amendment, excluding pesticides, that is to be used in
organic crop and food production and that complies with the
requirements of the NOP standards, as specified in Part 205
(commencing with Section 205.1) of Subchapter M of Chapter I
of Subtitle B of Title 7 of the Code of Federal Regulations.
2)Excludes bulk soil amendments (e.g. compost, co-compost,
mulch) that do not make nutrient claims from the definition
of organic input material.
3)Adds the term "organic input material" to various existing
definitions and defines it to mean any bulk or packaged
commercial products to be used in organic crop or food
production, in compliance with NOP standards.
4)Requires the Secretary, prior to licensure of a fertilizer
manufacturer or distributor, to verify the fertilizer
material is compliant with the chapter.
5)Raises the registration fee to not exceed $300 per product
and prohibits a registration to be issued without a current
license.
6)Raises the registration fee to not exceed $500 per organic
input material product, states that such labels require
additional resources and review time to ensure nutrient
guarantees and that claims are scientifically feasible and
meet NOP standards, and prohibits a registration to be
issued without a current license.
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7)Adds organic input materials to the products that the fees
in #8 and #9 of "Existing Law" above are subject.
8)Requires the fees in #5-7 above that are generated by
organic input materials to be placed in a separate account
that is subject to appropriation by the Legislature.
9)Requires organic input material manufacturers to be
inspected once per year by the Secretary or by a NOP
recognized third party for out-of-state manufacturers for
validation of label nutrient guarantees, claims and
compliance with NOP standards. All inspection records by
third parties must be made available to the Secretary upon
request and third parties must inform CDFA of site
inspections no less than 72 hours prior to the inspection,
permitting CDFA to be present at the inspection.
10)Creates a cause for revocation of a license due to the
manufacturer's failure to provide the required tonnage
report within 90 days of being due.
11)Authorizes the inspection of fertilizer materials,
manufacturing facilities and samples at various stages of
production to verify production process, label and labeling
claims.
12)Requires the Secretary, for purposes of enforcement at
times and as necessary, to monitor the manufacturing of
fertilizer material and sample different stages of the
manufacturing process.
13)Increases the penalty to a maximum of $1,000 for the first
violation of this chapter and to not less than $1,000 for
each subsequent violation.
14)Changes the name of the CDFA oversight division from
"Agricultural Commodities and Regulatory Services" to "Feed,
Fertilizer, Livestock Drugs and Egg Regulatory Services."
15)Requires a civil penalty be levied, of not more than $5,000
for each violation of this chapter, based upon the
seriousness of the violation. If the violation is
negligible or unintentional, a notice of warning is
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permitted. For those levied civil penalties, a due process
appeal hearing is provided with the right to present
evidence, with the Secretary's decision reviewed in
accordance to the Code of Civil Procedure, as specified.
16)Creates a penalty for any person that adulterates,
misbrands or alters a fertilizing material that results in
the material not being consistent with the label claims.
This is a misdemeanor punishable by not more than $15,000
for the first offense and not less than $15,000 for each
subsequent violation. Any violators may be prohibited from
obtaining a license to sell organic input materials for
three years.
17)Creates a civil penalty for the movement, distribution or
sale of product quarantined by the Secretary or a
misdemeanor punishable by a fine or not more than $5,000 for
the first offense, and a fine of not less than $10,000 for
second or subsequent violations.
18)Mandates that CDFA is entitled to recovery, from any person
found in violation of this chapter, of any reasonable
attorney fees and other related costs involved in
enforcement of this chapter.
19)Prohibits the distribution of a product considered
adulterated, and adds that an organic input material is
adulterated if it is not in compliance with the requirements
of NOP standards.
20)Changes the composition of the Fertilizer Advisory Board by
specifying that of the nine members, one must be an organic
input product producer and one must be an organic food or
crop grower.
21)Requires the Secretary of CDFA to report on materials not
covered by the new definition of organic input material and
directs the Secretary to make recommendations regarding
further statutory action needed on those materials.
COMMENTS :
1)Purpose of Bill . According to the author, this bill would
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increase the enforcement and regulatory authority of CDFA
toward manufacturers of organic fertilizers including
increased penalties and civil actions. The lack of
oversight has resulted in the use of synthetic substances
in the production of fertilizers used for organic farming.
2)Background . Specialty fertilizers, packaged agricultural
minerals, auxiliary soil and plant substances, and packaged
soil amendments require registration prior to being offered
for sale or distribution in this state. Registrations are
for two years, beginning January 1st of an even-numbered
year and expiring on December 31st of the following
odd-numbered year. While the fee can be raised to $200,
the current registration fee is $100 per label, and renewal
is $50 per label. Current law does not require label
review of manufactured or distributed bulk fertilizers
(over 110 pounds).
3)Fertilizing Materials Inspection Program . The Fertilizing
Materials Inspection Program is an industry-funded program
that is supposed to ensure that consumers receive
fertilizing materials that are safe and effective and meet
the quality and quantity guaranteed by the manufacturer.
Inspectors and investigators located throughout the state
conduct routine sampling and inspections; respond to
consumer complaints; and enforce the laws and regulations
that govern the manufacturing and distribution of
fertilizing materials.
As part of the Fertilizing Materials Inspection Program, the
Fertilizer Research and Education Program (FREP)
facilitates research to advance the environmentally safe
and agronomically sound use and handling of fertilizer
materials. The program is funded through the collection of
license fees, mill tax and registration fees.
Current law establishes the formation of a Fertilizer
Inspection Advisory Board who advises or makes
recommendations to the secretary on matters relating to
inspection and enforcement, research and education, annual
budget, necessary fees, and regulations required to
accomplish the purposes of the law. The board is comprised
of eight members who are subject to licensure pursuant to
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the fertilizer laws and regulations and one public member;
all are appointed by the secretary for three-year terms.
This bill attempts to provide representation that is
reflective of the new materials and products under the
purview of CDFA. Some argue that the current Board make-up
has representation of producers and users of organic
products, however this might not always be the case and
adding specified slots would ensure adequate
representation. Also, as this Board has advisory authority
to the Secretary on most matters related to the oversight
and enforcement it is even more critical to have
representation.
4)Organic Oversight Shortcomings . Current law does not
require label review or registration of manufactured or
distributed bulk fertilizers (over 110 pounds) including
many organic fertilizers. This lack of oversight has
caused some significant concerns due to the discovery of
one manufacturer spiking their organically labeled product
with a synthetic substance that is prohibited for use on
organic crops. This violates the requirements for NOP
standards. The NOP at the USDA, develops, implements, and
administers national production, handling, and labeling
standards for organic agricultural products. The NOP also
accredits the certifying agents (foreign and domestic) who
inspect organic production and handling operations to
certify that they meet USDA standards. Organic food is
produced without using most conventional pesticides,
fertilizers made with synthetic ingredients or sewage
sludge, bioengineering, or ionizing radiation. Organic
meat, poultry, eggs, and dairy products come from animals
that are given no antibiotics or growth hormones. Before a
product can be labeled "organic," a USDA accredited
certifier inspects the farm where the food is grown to make
sure the farmer is following all the rules necessary to
meet USDA organic standards. Companies that handle or
process organic food before it gets to your local
supermarket or restaurant must be certified and inspected
also.
Problems with labeling and organics were raised with CDFA in
June 2004 but their investigation was not completed until
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January 2007, at which time CDFA ordered the removal of the
product from the organic market. No fines or penalties
were sought from the manufacturer. This incident lead to
the finding that CDFA lacked sufficient oversight authority
for organic input materials for fertilizers using organic
labels.
In February 2009, the Senate Committee on Food and
Agriculture held an informational hearing on the issue of
organic fertilizers and CDFA's oversight of the fertilizer
industry. At that hearing, CDFA referred to AB 856,
although it had not been introduced as of that date, as the
vehicle that would address the organic fertilizer concerns.
CDFA developed a strategic plan for its Fertilizer
Materials Inspection Program that was completed in 2008.
The language in AB 856 reflects many of the statutory gaps
that were discovered by the organics incident referenced
previously and the strategic planning process.
Additionally, as a result of the strategic planning, CDFA
expanded its staff for fertilizer materials label review,
field inspections, and manufacturer and distributor
licensure. AB 856 will permit CDFA to expand its
inspection program by increasing the fee cap on
conventional products and establishing a new fee
specifically for organic products, creating the revenues to
hire additional staff. This new staff will focus on the
review, inspection and testing of fertilizer input
materials, specifically dealing with organic products.
5)Composting Issues . Compostable materials make up well over
one-third of most local jurisdictions' waste streams.
State mandated diversion requirements (50% diversion from
disposal) have resulted in an increasing number of
compostable material processing operations. Composting,
and other organics diversion activities are essential in
the diversion efforts. The Integrated Waste Management
Board (IWMB) has worked with state agencies for years to
promote the use of compost from waste green materials.
They have worked with CDFA on this issue as well. However,
much more needs to be done to bring compost into the
forefront and move it toward wide acceptance and use.
This bill exempts compost, and other bulk soil amendments
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that do not make a claim or guarantee regarding content,
from the proposed definiton of "organic input material".
However, the bill directs the Secretary to evaluate compost
and other materials not currently under the authority of
CDFA and report back on if, and how, those materials should
be regulated. This is an appropriate approach as compost
is made from variable feedstocks for different purposes and
does not have the content consistency of manufactured
fertilizers. It could be argued that compost and compost
production should have some quality control oversight by
CDFA. However, any approach must take into account the
considerations mentioned above.
6)Cross-media Impacts . When nutrients and other pollutants
associated with animal manures and commercial fertilizers
are not managed properly, they can affect plant and animal
life (including humans) negatively. Some of these impacts
include algae blooms causing the depletion of oxygen in
surface waters, pathogens and nitrates in drinking water,
and the emission of odors and gases into the air.
7)Outstanding Concerns . Some stakeholders have raised
concerns that the make-up of the Fertilizer Advisory Board
proposed by this bill is disproportionate to the current
industry composition. Also, concerns regarding the
placement of the funds generated from the addition of
'organic input materials' into a fund that is subject to
Legislative oversight could slow program implementation.
8)Double Referral to Food and Agriculture Committee . Should
this measure be approved by this committee, the do pass
motion must include the action to re-refer the bill to the
Senate Committee on Food and Agriculture.
SOURCE : California Department of Food and Agriculture
SUPPORT : California Certified Organic Farmers
Organic Fertilizer Association of California
Western Plant Health Association
OPPOSITION : None on file