46000-46029
FOOD AND AGRICULTURAL CODE
SECTION 46000-46029
46000. (a) This chapter shall be known, and may be cited as, the
California Organic Products Act of 2003.
(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.
46001. This act 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.).
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 bill 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.
46003. (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) The advisory committee shall be comprised of 15 members. Each
member may have an alternate. Six members and their alternates shall
be producers, at least one of whom shall be a producer of meat, fowl,
fish, dairy products, or eggs. Two members and their alternates
shall be processors, one member and his or her alternate shall be
wholesale distributors, two members and their alternates shall be
consumer representatives, one member and his or her alternate shall
be environmental representatives, two members and their alternates
shall be technical representatives with scientific credentials
related to agricultural chemicals, toxicology, or food science, and
one member and his or her alternate shall be retail representatives.
Except for the consumer, environmental, and technical
representatives, the members of the advisory committee and their
alternates shall have derived a substantial portion of their business
income, wages, or salary as a result of services they provide which
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. The consumer and
environmental representatives and their alternates 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. The
technical representatives and their alternates shall not have a
financial interest in the production, handling, processing, or
marketing of the organic products industry. The technical
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.
(c) 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.
(d) 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.
(e) The members of the advisory committee and their alternates
described in subdivision (b) 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.
(f) The secretary or his or her representative, the State Public
Health Officer or his or her representative, and a county
agricultural commissioner may serve as ex officio members of the
advisory committee.
46003.5. (a) Following the promulgation of the national materials
list by the United States Department of Agriculture pursuant to the
federal Organic Foods Production Act of 1990 (7 U.S.C. Secs. 6501 to
6522, incl.), the secretary, in consultation with the Organic Food
Advisory Board, shall adopt regulations listing specific substances
that are in compliance or not in compliance with the definition of
"prohibited materials," as defined in subdivision (p) of Section
110815 of the Health and Safety Code, for use in the production and
handling of organic foods.
Prior to the promulgation of the national materials list by the
United States Department of Agriculture pursuant to the federal
Organic Foods Production Act of 1990, the Organic Food Advisory
Board, in consultation with the secretary, shall determine which, if
any, substance may be allowed for use in the production and handling
of organic foods in this state. Within 90 days of promulgation of the
national materials list by the United States Department of
Agriculture, the Organic Food Advisory Board, in consultation with
the secretary, shall determine which, if any, substance allowed for
use by the national materials list may be allowed for use in the
production and handling of organic foods in this state.
(b) Prior to adoption of these regulations, the secretary shall
issue administratively a preliminary, nonexhaustive list of materials
that are in compliance or not in compliance with subdivision (p) of
Section 110815 of the Health and Safety Code based on the listings of
permitted materials published by California Certified Organic
Farmers, the Organic Trade Association, and the Departments of
Agriculture of the States of Oregon and Washington.
46004. (a) 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.
(b) 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.
(c) 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.
(d) 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.
46004.1. Unless defined pursuant to the National Organic Program
(NOP), the following words and phrases, when used in this act, shall
have the following meanings:
(a) "Act" means this chapter. It also means the federal Organic
Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.) and the
regulations adopted pursuant to the federal Organic Foods Production
Act of 1990 (7 U.S.C. Sec. 6501 et seq.).
(b) "Categorical products" means categories of products of like
commodity such as apples, salad products, etc. and does not require
variety specific information.
(c) "Enforcement authority" means the governmental unit with
primary enforcement jurisdiction, as provided in Section 46008.
(d) "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.
(e) "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.
(f) "Handle" means to sell, process, or package agricultural
products.
(g) "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.
(h) "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.
(i) "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.
(j) "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.
(k) "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.
(l) "Secretary" means the Secretary of Food and Agriculture.
(m) "USDA" means the United States Department of Agriculture.
46005. This act shall apply notwithstanding any other provision of
law that is inconsistent with this act. Nothing in this act is
intended to repeal any other provision of law not inconsistent with
this act.
46006. At the request of a county agricultural commissioner, the
district attorney for that county may bring an action to enforce this
chapter or Article 7 (commencing with Section 110810) of Chapter 5
of Part 5 of Division 104 of the Health and Safety Code, within the
enforcement jurisdiction of that commissioner.
46007. (a) Any penalties collected by the secretary and any fees
collected by a county agricultural commissioner pursuant to this
chapter shall be deposited in the Department of Food and Agriculture
Fund and, upon appropriation by the Legislature, shall be expended
solely to fulfill the responsibilities of the secretary and county
agricultural commissioner acting under the direction and supervision
of the secretary, as specified in this act.
(b) Any fees and penalties collected by a county agricultural
commissioner pursuant to Section 46017 and any other penalties
collected by a county agricultural commissioner pursuant to this
chapter shall 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) The secretary shall establish a specific minimum amount to be
reimbursed to each county agricultural commissioner per registrant in
that county. This reimbursement shall not limit the amount of the
reimbursement otherwise made to county commissioners for their
enforcement activities.
46008. (a) Article 14 (commencing with Section 43031) of Chapter 2
of the Food and Agricultural Code 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.
(b) The secretary, county agricultural commissioners, and the
State Director of Health Services shall be considered enforcing
officers for purposes of those provisions of law under their
respective jurisdiction.
46009. Any person subject to this act 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.
46010. 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.
46010.5. No fee established and collected pursuant to this chapter
shall exceed the department's costs 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.
46011. This act shall not apply to the term "natural" when used in
the labeling or advertising of a product.
46012. 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 director,
agricultural commissioners, and the State Director of Health Services
shall be considered enforcing officers for purposes of those
provisions of law under their respective jurisdiction.
46013. Any producer, handler, processor, or registered
certification organization 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.
46013.1. (a) Every 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
agricultural commissioner in the county of principal operation prior
to the first sale of the product. All processors of organic
agriculturally derived products that are not required to be
registered as outlined in subdivision (b) must register with the
secretary. Each registrant must annually renew the registration
unless no longer engaged in the activities requiring the
registration. Each registrant shall provide a complete copy of its
registration to the county agricultural commissioner in any county in
which the registrant operates.
(b) Every person engaged in this state in the processing or
handling of processed products pursuant to Section 110460 of the
Health and Safety Code, and pet food pursuant to Section 18653, and
cosmetics pursuant to Section 111795 of the Health and Safety Code,
including processors of alcoholic beverages, fish and seafood, shall
register with the State Public Health Officer.
(c) Registration pursuant to this section shall be on a form
either provided by the secretary or approved by the secretary and
shall be valid for a period of one calendar year from the date of
validation by the secretary or county agricultural commissioner of
the completed registration form.
(d) The information provided on the registration form shall
include all of the following:
(1) The nature of the registrant's business, including the
categorical products produced, handled, or processed that are sold as
organic and the names and registration numbers of those persons for
whom they sell product as applicable.
(2) (A) For producers, a detailed physical description of the
precise location and dimensions of the facility or farm where the
products are produced.
(B) For exempt producers, in addition to the physical description
specified in subparagraph (A), a map describing the boundaries and
dimensions of the production area and all adjacent land uses,
assigning field numbers to distinct fields or management units, and
describing the size of each field or management unit.
(C) When the exempt producer or exempt handler has not had control
of the property being registered for at least 36 months,
documentation shall be provided from previous owners or managers that
shows the 36-month land use history. When the exempt producer or
exempt handler is not the owner, documentation shall be provided from
the owner granting permission for the parcel to be registered as
organic by the exempt producer or exempt handler.
(3) Sufficient information, under penalty of perjury, to enable
the secretary or county agricultural commissioner to verify the
amount of the registration fee to be paid in accordance with this
act.
(4) The names of all certification organizations or governmental
entities, if any, providing organic certification to them.
(5) In the case of exempt producers, for each field or management
unit, a list of all substances applied to the crop, soil, growing
medium, growing area, irrigation water or postharvest wash or rinse
water, or seed, including the source of the substance, the brand
name, if any, the rate of application, and the total amount applied
in each calendar year, for at least the applicable time periods
specified in this act.
(e) The registration form shall include a separate "public
information sheet" or its equivalent that shall include:
(1) The name and address of the registrant.
(2) The nature of the registrant's business, including the
categorical products produced, handled, or processed that are sold as
organic.
(3) The names of all certification organizations or governmental
entities, if any, providing certification pursuant to the NOP and
this act.
(f) A registration form shall be accompanied by payment of a
nonrefundable registration fee by producers, handlers, and
processors, which shall be based on gross sales by the registrant of
product sold as organic in the calendar year that precedes the date
of registration or, if no sales were made in the preceding year, then
based on the expected sales during the 12 calendar months following
the date of registration. Unless specified elsewhere the fee is based
according to the following schedule:
Gross Sales Registration Fee
$ 0 - 4,999 $ 25
$ 5,000 - 10,000 $ 50
$ 10,001 - 25,000 $ 75
$ 25,001 - 50,000 $ 100
$ 50,001 - 100,000 $ 175
$ 100,001 - 250,000 $ 300
$ 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
-
(1) Any person required to register pursuant to this section whose
registration fee would be less than seventy-five dollars ($75) shall
pay an initial registration fee of seventy-five dollars ($75).
Thereafter, the amount of the annual fee shall be as specified above
or, according to the applicable classification, as described in
paragraphs (2) to (9), inclusive.
(2) Any person selling a multi-ingredient product in which less
than 70 percent of the ingredients are organic shall pay a fee of one
hundred dollars ($100) or one-half of the amount that would be due
based on the above chart, whichever is more.
(3) Producers that sell processed product shall pay fees based on
the value of raw product prior to being processed and the value of
any product sold as unprocessed.
(4) Any person that packs, repacks, labels, sorts, or otherwise
handles any organic product that is outside the jurisdiction of the
State Public Health Officer and that does not take title or manage
the sale of the product, but provides only handling services for
organic product, shall register and pay one hundred dollars ($100)
per year.
(5) Commission merchants or brokers that do not take possession or
title of the product but arrange for the sale of the product shall
register and pay one hundred dollars ($100) per year.
(6) A retail store engaged in the handling or processing of
organic products shall register and pay a fee of one hundred dollars
($100) for each store location that processes organic products
onsite.
(7) Any person that provides temporary storage or transportation
for organic product and does not handle the raw unpackaged product
does not have to register.
(8) Any person that hires any other person for custom packing or
labeling shall register and pay a fee based on the total sales of
product custom produced for them as outlined in the chart above. In
addition to the required registration information above the person
must disclose on the registration form the names of all companies
that pack and process for them.
(9) Any person required to register pursuant to this section that
fits the description of more than one of the persons described above
shall pay the greater of the multiple amounts.
(10) The secretary may require any producer, handler, processor,
or other organic registrant to provide the exact dollar amount of
gross sales of twenty-five million one dollars ($25,000,001) or more
in lieu of the range specified in subdivision (f).
(11) The secretary may require any producer, handler, processor,
or other organic registrant to submit gross sales by commodity and
gross sales by acreage.
(g) The secretary may adopt regulations that supersede the terms
of this section to the extent reasonably necessary to provide an
online system of registration for those required to register pursuant
to this section.
46013.2. (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"
described in subdivision (e) of Section 46013.1 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 act. 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.
46014. This chapter also applies to seed, fiber, and horticultural
products. The terms "foods" and "raw agricultural commodities" as
used in this chapter, and in Article 7 (commencing with Section
110810) of Chapter 5 of Part 5 of Division 104 of the Health and
Safety Code, include seed, fiber, and horticultural products where
the context requires to effectuate this section.
46014.1. (a) Any certification organization that certifies product
in this state sold as organic shall register with the secretary and
shall thereafter annually renew the registration, unless the
organization is no longer engaged in the activities requiring the
registration. Registration shall be on a form provided by the
secretary, shall include a copy of accreditation by the USDA or proof
of application if applicable.
(b) Each certification organization shall pay to the secretary an
annual registration fee of twenty-five dollars ($25) for each client
they have certified in this state up to a maximum of two hundred
fifty dollars ($250). Any registration submitted by a certification
organization shall be made available to the public for inspection and
copying. The secretary may audit the organization's certification
procedures and records at any time, but any records of the
certification organization not otherwise required to be disclosed
shall be kept confidential by the secretary.
(c) 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 act. 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.
The certification fee authorized by this subdivision 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
interest per month on the unpaid balance.
46014.2. (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
act.
(c) A certification organization shall be accredited by the USDA
as provided in the NOP.
46014.4. A registered certification organization shall submit to
the secretary every January and June a list of all persons whose
production or processing of product in California is certified. The
list shall be publicly available within 30 days after the end of each
filing period. A certifier that keeps a current list on a Web site
available to the public may be deemed to meet this requirement.
46014.6. Only products that have been produced and handled in
accordance with this act may be certified by a registered
certification organization.
46015. Materials acceptable in this state are those outlined in
Sections 205.600 to 205.607, inclusive, of Title 7 of the Code of
Federal Regulations.
46016.1. (a) Any person may file a complaint with the secretary
concerning suspected noncompliance with this act, as provided in
Section 46000 or 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 act to the extent funds are available for those purposes.
(e) The complaint process in this state must also meet all the
complaint process outlined in regulations adopted by the NOP.
46016.2. (a) Any 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:
(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 and may contain:
(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) above, take any corrective action as specified in
this act.
46016.3. Any person may appeal to the secretary for a hearing if
aggrieved by any one of the following actions or decisions:
(a) Denial of any registration.
(b) Revocation of any registration.
46016.4. 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.
46016.5. As provided for in regulations adopted by the NOP, the
action proposed by a NOP accredited certifier against a client may be
appealed to the secretary for mediation.
46017. (a) In lieu of prosecution, the secretary or a county
agricultural commissioner may levy a civil 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 a civil penalty of not more than two thousand
five hundred dollars ($2,500) for each violation.
(c) For a first offense, in lieu of a civil 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 a civil 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
civil 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) A civil penalty levied by the secretary pursuant to this
section may be recovered in a civil action brought in the name of the
state. A civil 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
a civil 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 civil 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.
46018.1. The secretary and the county agricultural commissioners
may conduct a program of spot inspections to determine compliance
with this act.
46018.2. At the request of a county agricultural commissioner, the
district attorney for that county may bring an action to enforce this
act and the NOP within the enforcement jurisdiction of that
commissioner.
46020. (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.
46021. (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
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 pursuant to this act.
46022. (a) It is unlawful for any person to produce or handle any
product sold as organic unless duly registered pursuant to Section
46013.1.
(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
46013.1.
46023. It is unlawful for any person to forge, falsify, fail to
retain, fail to obtain, or fail to disclose records pursuant to
Section 46028.
46024. (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.
(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.
46027. (a) 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.
46028. (a) All persons who produce, handle, or retail products that
are sold as organic shall keep accurate and specific records of the
following as applicable:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) (A) 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.
(B) 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.
(6) 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.
(7) 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.
46029. (a) Notwithstanding any other provision of 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 act. Records acquired pursuant to this act 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 act 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 46028.
(2) Records of a handler, as described in Section 46028, records
of previous handlers, if any, and producers as described in Section
46028 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 46028,
records of previous handlers, if any, and producers as described in
Section 46028 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 act.
(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. Prior to 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.