110810. This article shall be known, and may be cited as, the
California Organic Products Act of 2003.
110811. This article shall be interpreted in conjunction with
Chapter 10 (commencing with Section 46000) of Division 17 of the Food
and Agricultural Code and the regulations promulgated 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.)).
110812. The director 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.
110815. Unless otherwise defined pursuant to the National Organic
Program, the following words and phrases, when used in this article,
shall have the following meanings:
(a) "Animal food" means any food intended to be fed to any
household animal, including, but not limited to, cats, or dogs and
other carnivores. It does not include "feed" intended for livestock
as defined in Section 205.2 of Title 7 of the Code of Federal
Regulations.
(b) "Director" means the Director of the Department of Health
Services.
(c) "Enforcement authority" means the governmental unit with
primary enforcement jurisdiction, as provided in Section 110930.
(d) "Handle" means to sell, process, or package agricultural
products.
(e) "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.
(f) "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.
(g) "NOP" means the National Organic Program established pursuant
to the Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et
seq.) and the regulations adopted for implementation.
(h) "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.
(i) "Prohibited materials" means any materials prohibited under
regulations adopted by (Section 6517 of the federal Organic Foods
Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)). For products
not covered by the National Organic Program, prohibited materials are
anything not on the approved list.
(j) "Secretary" means the Secretary of the California Department
of Food and Agriculture.
(k) "Sold as organic" means any use of the terms "organic,"
"organically grown," or grammatical variations of those terms,
whether orally or in writing, in connection with any product grown,
handled, processed, sold, or offered for sale in this state,
including, but not limited to, any use of these terms in labeling or
advertising of any product and any ingredient in a multi-ingredient
product.
( l) "USDA" means the United States Department of Agriculture.
110818. Water, including substances dissolved in water, shall not
be a prohibited material, even if it contains incidental
contamination from a prohibited material, if the prohibited material
was not added by, or under the direction or control of, the person in
control of the product.
110820. Except as otherwise provided in this article, no product
shall be sold as organic pursuant to this article unless it is
produced according to regulations promulgated by the NOP, and
consists entirely of products manufactured only from raw or processed
agricultural products except as follows:
(a) Water, air, and salt may be added to the product.
(b) Ingredients other than raw or processed agricultural products
may be added to the product if these ingredients include
nonagricultural substances or nonorganically produced agricultural
products produced in a manner consistent with, or which are on the
national list adopted by the United States Secretary of Agriculture
pursuant to Section 6517 of the NOP and do not represent more than 5
percent of the weight of the total finished product, excluding salt
and water.
110825. Materials acceptable in this state are those outlined by
regulations promulgated by the NOP and the provisions of this
article.
110827. No aquaculture, fish, or seafood product, including, but
not limited to, farmed and wild caught species, shall be labeled or
represented as "organic" until formal organic certification standards
have been developed and implemented by the United States Department
of Agriculture's National Organic Program or the California
Department of Food and Agriculture.
110830. (a) No product handled, processed, sold, advertised,
represented, or offered for sale in this state, shall be sold as
organic unless it also is prominently labeled and invoiced with
similar terminology as set forth by regulations promulgated by the
NOP.
(b) No 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.
110835. The director may adopt regulations allowing or prohibiting
the use of substances in the processing of products that are exempt
or excluded from certification under the NOP, and animal food and
cosmetics sold as organic.
110838. (a) Cosmetic products sold, labeled, or represented as
organic or made with organic ingredients shall contain, at least 70
percent organically produced ingredients.
(b) The percentage of all organically produced ingredients in an
agricultural product sold, labeled, or represented as "organic" or
"100 percent organic," or sold, labeled, or represented as being made
with organic ingredients or food groups, or as inclusive of organic
ingredients, shall be calculated as follows:
(1) For products containing organically produced ingredients in
solid form, by dividing the total net weight of combined organic
ingredients at formulation, excluding water and salt, by the total
weight of the finished product, excluding water and salt.
(2) For products containing organically produced ingredients in
liquid form, by dividing the fluid volume of all organic ingredients,
excluding water and salt, by the fluid volume of the finished
product, excluding water and salt. If the liquid product is
identified on the principal display panel or information panel as
being reconstituted from concentrates, the calculation should be made
on the basis of single-strength concentrations of the ingredients
and finished product.
(3) For products containing organically produced ingredients in
both solid and liquid form, by dividing the combined weight of the
solid ingredients and the weight of the liquid ingredients, excluding
water and salt, by the total weight of the finished product,
excluding water and salt.
(c) The percentage of all organically produced ingredients in an
agricultural product must be rounded down to the nearest whole
number.
(d) The percentage of all organically produced ingredients in an
agricultural product must be determined by the handler who affixes
the label to the consumer package and verified by the handler's
certifying agent. The handler may use information provided by the
certified operation in determining the percentage.
110839. Multi-ingredient cosmetic products sold as organic in
California with less than 70 percent organically produced
ingredients, by weight or by fluid volume, excluding water and salt,
may only identify the organic content as follows:
(a) By identifying each organically produced ingredient in the
ingredient statement with the word "organic" or with an asterisk or
other reference mark that is defined below the ingredient statement
to indicate the ingredient is organically produced.
(b) If the organically produced ingredients are identified in the
ingredient statement, by displaying the product's percentage of
organic contents on the information panel.
110840. (a) All persons who handle products sold as organic shall
keep accurate and specific records of the following:
(1) Except when sold to the consumer, the name and address and, if
applicable, the registration numbers issued pursuant to Section
110875 of this code or Section 46002 of the Food and Agricultural
Code 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.
(2) Invoices, bills of lading, or other documents that show
transfer of title of certified organic products must indicate the
product is "organic" or "certified organic" and, if applicable, the
California registration number of the person transferring the
product.
(3) Any person selling a product which is exempt or excluded from
certification under NOP rules, shall follow the requirements of
Section 205.101 of Title 7 of the Code of Federal Regulations.
(4) 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.
(b) All persons who sell, at retail, products sold as organic
shall keep accurate and specific records of the following:
(1) Except when sold to the consumer, the name and address and, if
applicable, the registration numbers issued pursuant to Section
110875 of this code or Section 46002 of the Food and Agricultural
Code of all suppliers of persons, to whom or from whom the product is
sold, purchased, or otherwise transferred, the quantity of product
purchased or otherwise transferred, and the date of the transaction.
(2) Invoices, bills of lading or other documents that show
transfer of title of certified organic products must indicate the
product is "organic" or "certified organic" and, if applicable, the
California registration number of the person transferring the
product.
(3) Any person selling a product that is exempt or excluded from
certification under NOP rules, shall follow the requirements of
Section 205.101 of Title 7 of the Code of Federal Regulations.
(4) 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.
(c) All records required to be kept under this section shall be
maintained as set forth by regulations promulgated by the NOP, when
applicable, or as follows: by producers for not less than three years
and by handlers for not less than two years from the date that the
product is sold, and shall be maintained by retailers for not less
than one year from the date that the product is sold, and shall be
maintained by the retailers for not less than one year from the date
that the product is received by the retailer. These records shall be
made available for inspection at any time by the director or the
secretary and by each certification organization that certifies the
product, if any, for purposes of carrying out this article and
Chapter 10 (commencing with Section 46000) of Division 17 of the Food
and Agricultural Code.
110845. (a) Notwithstanding any other provision of law, any
producer, handler, processor, or retailer of products 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
director, the Attorney General, any prosecuting attorney, any
governmental agency responsible for enforcing laws related to the
production or handling of products sold as organic, or the secretary
of any record required to be kept under this section for purposes of
carrying out this article and Chapter 10 (commencing with Section
46000) of Division 17 of the Food and Agricultural Code. Records
acquired pursuant to this subdivision 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 director and 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
article 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 handler, as described in paragraph (4) of
subdivision (a) of Section 110840, records of previous handlers, if
any, without identifying the previous handlers or producers, and, if
applicable, records obtained as required in subdivision (b).
(2) Records of a retailer, as described in paragraph (4) of
subdivision (b) of Section 110840, records of previous handlers, if
any, as described in paragraph (4) of subdivision (a) of, Section
110840, without identifying the previous handlers, and, if
applicable, records obtained as required in subdivision (b).
This subdivision shall be the exclusive means of public access to
records required to be kept by handlers and retailers under this
article.
A person required to provide records pursuant to a request under
this subdivision, may petition the director or the secretary to deny
the request based on a finding that the request is of a frivolous or
harassing nature. The secretary or director 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 director or the secretary may charge the person requesting
records a reasonable fee to reimburse him or her self or the source
of the records for the cost of reproducing the records requested.
(e) Any person who first imports into this state, for resale,
products sold as organic shall obtain and provide to the enforcement
authority, upon request, proof that the products being sold have been
certified by an accredited certifying organization or have otherwise
been produced in compliance with this article.
(f) The director 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 chapter in response to a
subpoena, the director shall delete any information regarding the
identity of suppliers or customers and the quantity or price of
supplies purchased or products sold.
110850. (a) Following initial United States Department of
Agriculture accreditation of certifying agents as provided in Section
6514 of Title 7 of the United States Code and upon implementation of
the federal organic certification requirement pursuant to the
federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et
seq., Sec. 2101, P.L. 101-624), 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. In
addition products shall be sold as organic only in accordance with
this section, Sections 110855 to 110870, inclusive, and Section 46009
of the Food and Agricultural Code. The secretary, director, and the
county agricultural commissioners shall carry out this subdivision to
the extent that adequate funds are made available for that purpose.
(b) Products sold as organic may be certified only by a
certification organization registered pursuant to Section 46014.1 of
the Food and Agricultural Code or a federally accredited
certification organization.
(c) In order to be registered, a certification organization shall
be accredited by the USDA, if required.
(d) A certification organization that certifies processed products
sold as organic shall register with the secretary.
(e) The director may audit the organization's certification
procedures and records at any time. Records of certification
organizations not otherwise required to be released upon request or
made publicly available shall not be released by the director except
to 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.
110855. Prior to initial certification of a producer, a registered
certification organization shall conduct at least one initial
physical inspection of the premises where the food to be certified is
produced. This inspection shall include the recordkeeping system
necessary for compliance with Section 110840 and the area or facility
at which the food is produced.
110860. (a) A registered certification organization shall no less
often than, at the end of each calendar quarter, prepare a list by
name of all persons whose production or processing of food is
certified or pending certification by the certification organization.
This list shall be filed with the department or the Department of
Food and Agriculture, as applicable, by the certification
organization and made publicly available within 30 days after the end
of each quarter.
(b) A registered certification organization or a federally
accredited certification organization 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.
110865. A registered certification organization shall adopt and
adhere to a certification plan filed annually and made publicly
available. Except in the case of a certification program established
pursuant to subdivision (e) of Section 110850, a certification plan
shall be filed as part of the registration required pursuant to
subdivision (d) of Section 110850. A certification plan shall at
minimum include a detailed description of all of the following
elements of the certification organization's program:
(a) Minimum information required from producers or processors
regarding growing or processing practices and methods for verifying
that information.
(b) Qualifications of and training requirements for all
inspectors.
(c) Procedures for inspection, including frequency and items
covered.
(d) Procedures for soil and tissue sampling and analysis.
(e) Criteria for certification.
(f) Process for certification decisionmaking, including
identification of persons with decisionmaking authority.
110870. Only products that have been handled and processed in
accordance with this article may be certified by a registered
certification organization.
110875. (a) 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) within 30 days of the date on which
the fee is due and payable shall pay a penalty of 1 1/2 percent per
month on the unpaid balance.
(b) 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).
(c) 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), 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), the organic registration
shall be renewed annually using the same expiration month and day as
the two-year license or registration.
(d) A registration form shall be accompanied by payment of a
nonrefundable registration fee payable to the department by handlers
which 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:
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) Revenue received pursuant to this section shall be deposited
in the Food Safety Fund created pursuant to Section 110050.
(f) The director shall reject a registration submission that is
incomplete or not in compliance with this article and regulations
promulgated by the NOP.
(g) The director shall provide a validated certificate to the
registrant.
(h) 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
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) 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) 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) A registration is considered legal and valid until revoked,
suspended, or until the expiration of the registration.
( l) The registration revocation process must 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) 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 be sent to the registrant
and the certifier will notify them that they are no longer able to
market products as organic until the account is paid in full.
(n) Any registration that is more than 60 days late will be
considered invalid and it is a violation if product is sold as
organic.
110880. This article shall apply to all products sold as organic
within the state, wherever produced, handled, or processed, and to
all products produced, that are handled or processed in the state,
wherever sold as organic.
110885. This article shall not apply to the term "natural" when
used in the labeling or advertising of a product.
110890. (a) It is unlawful for any person to sell, offer for sale,
advertise, or label any product in violation of this article.
(b) Notwithstanding subdivision (a), a person engaged in business
as a distributor or retailer of products who in good faith sells,
offers for sale, labels, or advertises any product in reliance on the
representations of a producer, handler, or other distributor that
the product may be sold as organic, shall not be found to violate
this article 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; or (3) prescribed or
specified the manner in which the product was produced or processed.
110895. (a) It is unlawful for any person to certify products in
violation of this article.
(b) It is unlawful for any person to certify products as organic
unless duly registered or accredited as a certification organization
pursuant to Section 110850.
(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 Section 110850.
110900. (a) It is unlawful for any person to produce, handle, or
process products sold as organic unless duly registered pursuant to
Section 110875.
(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 110875.
110905. It is unlawful for any person to forge, falsify, fail to
retain, fail to obtain, or fail to disclose records pursuant to
Sections 110840 and 110845.
110910. It is unlawful for any person to do any of the following:
(a) 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) Alter any organic registration form.
(c) Alter any certification document.
(d) Falsify any document.
(e) Use the term "transitional organic" in this state to represent
a product for sale.
110915. (a) In lieu of prosecution, the director may levy a civil
penalty against any person who violates this article, any regulation
adopted pursuant to this article, or any regulation promulgated 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 article, 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 director finds that a violation was not intentional, the
director 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 subdivisions (a) and (b), the director 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 levied shall be
afforded an opportunity for a hearing before the director, upon
request made within 30 days after the date of issuance of the notice
of penalty. At the hearing, the person shall be given the right to
review the director'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 decision of the director
may be sought by any person within 30 days of the date of the final
order of the director pursuant to Section 1094.5 of the Code of Civil
Procedure.
(f) A civil penalty levied by the director pursuant to this
section may be recovered in a civil action brought in the name of the
state.
110920. 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.
110925. Any fees and civil penalties collected pursuant to this
article shall be deposited in the General Fund and, upon
appropriation by the Legislature, shall be expended to fulfill the
responsibilities of the director as specified in this article.
110930. The director shall, to the extent funds are available,
enforce this article applicable to all processors and handlers of
processed products sold as organic, including handlers and processors
of fish and seafood, cosmetics, and animal food products sold as
organic, except for processors and handlers of processed meat, fowl,
and dairy products.
110935. The director shall maintain in a central location, and make
publicly available for inspection and copying, upon request, a list
of all penalties levied within the past five years, including the
amount of each penalty, the party against whom the penalty was
levied, and the nature of the violation. The list also shall be
available by mail, upon written request and payment of a reasonable
fee, as determined by the director.
110940. (a) Any person may file a complaint with the director
concerning suspected noncompliance with this article by a person over
whom the director has responsibility as provided in this article or
regulations adopted by the NOP.
(b) The director shall, to the extent funds are available,
establish a procedure for handling complaints, including, provision
of a written complaint form, and procedures for commencing an
investigation within three working days of receiving a written
complaint regarding fresh food, and within seven working days for
other product, and completing an investigation and reporting findings
and enforcement action taken, if any, to the complainant within 90
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 responsibilities of the director under this section shall
be carried out to the extent funds are available.
(e) The complaint process in this state shall also meet all the
complaint processes outlined in regulations promulgated by the NOP.
110945. This article shall apply notwithstanding any other
provision of law that is inconsistent with this article. Nothing in
this article is intended to repeal any other provision of law not
inconsistent with this article.
110950. The director may adopt any regulations as are reasonably
necessary to assist in the implementation of, or to make more
specific, the provisions of, this article.
110955. Any reference in law to former Section 26569.11, whether
existing or hereinafter enacted, shall be interpreted to refer to
this article and Chapter 10 (commencing with Section 46000) of
Division 17 of the Food and Agricultural Code as the successor
section.
110956. (a) All organic product regulations and any amendments to
those regulations adopted pursuant to the NOP, that are in effect on
the date this bill is enacted or that are adopted after that date
shall be the organic product regulations of this state.
(b) The director may, by regulation, prescribe conditions under
which organic products not addressed by the National Organic Program
may be sold in this state.
110957. It shall be unlawful for a person to represent in
advertising or labeling that the person or the products of the person
are registered pursuant to this article.
110958. Annually, the director shall compile and publish and submit
to the California Organic Products Advisory Committee a summary of
information collected under Section 110875, including, but not
limited to, the following:
(a) The total number of registrations received under this section.
(b) The total number and quantity of each type of product sold as
organic by all registrants combined.
(c) The total annual organic gross sales volume or revenue of all
registrants combined, and the median gross annual organic sales or
revenue of all registrants.
(d) The names of all registrants.
(e) The number of registrants in each of the following ranges of
annual gross sales volume:
(1) $0-$5,000
(2) $5,001-$25,000
(3) $25,001-$50,000
(4) $50,001-$125,000
(5) $125,001-$250,000
(6) $250,001-$500,000
(7) $500,001-$750,000
(8) $750,001-$1,000,000
(9) $1,000,001-$1,500,000
(10) $1,500,001-$2,500,000
(11) $2,500,001-$10,000,000
(12) $10,000,001-$30,000,000
(13) $30,000,001 and above.
(f) The report published pursuant to this section shall present
the required information in an aggregate form that preserves the
confidentiality of the proprietary information of individual
registrants.
110959. Beginning January 1, 2003, the director shall conduct a
program of spot inspections of persons required to register pursuant
to Section 110875 to verify continuing compliance with this article
and the regulations adopted by the NOP according to uniform
procedures established by the director and regulations promulgated by
the NOP.
110810. This article shall be known, and may be cited as, the
California Organic Products Act of 2003.
110811. This article shall be interpreted in conjunction with
Chapter 10 (commencing with Section 46000) of Division 17 of the Food
and Agricultural Code and the regulations promulgated 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.)).
110812. The director 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.
110815. Unless otherwise defined pursuant to the National Organic
Program, the following words and phrases, when used in this article,
shall have the following meanings:
(a) "Animal food" means any food intended to be fed to any
household animal, including, but not limited to, cats, or dogs and
other carnivores. It does not include "feed" intended for livestock
as defined in Section 205.2 of Title 7 of the Code of Federal
Regulations.
(b) "Director" means the Director of the Department of Health
Services.
(c) "Enforcement authority" means the governmental unit with
primary enforcement jurisdiction, as provided in Section 110930.
(d) "Handle" means to sell, process, or package agricultural
products.
(e) "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.
(f) "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.
(g) "NOP" means the National Organic Program established pursuant
to the Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et
seq.) and the regulations adopted for implementation.
(h) "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.
(i) "Prohibited materials" means any materials prohibited under
regulations adopted by (Section 6517 of the federal Organic Foods
Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)). For products
not covered by the National Organic Program, prohibited materials are
anything not on the approved list.
(j) "Secretary" means the Secretary of the California Department
of Food and Agriculture.
(k) "Sold as organic" means any use of the terms "organic,"
"organically grown," or grammatical variations of those terms,
whether orally or in writing, in connection with any product grown,
handled, processed, sold, or offered for sale in this state,
including, but not limited to, any use of these terms in labeling or
advertising of any product and any ingredient in a multi-ingredient
product.
( l) "USDA" means the United States Department of Agriculture.
110818. Water, including substances dissolved in water, shall not
be a prohibited material, even if it contains incidental
contamination from a prohibited material, if the prohibited material
was not added by, or under the direction or control of, the person in
control of the product.
110820. Except as otherwise provided in this article, no product
shall be sold as organic pursuant to this article unless it is
produced according to regulations promulgated by the NOP, and
consists entirely of products manufactured only from raw or processed
agricultural products except as follows:
(a) Water, air, and salt may be added to the product.
(b) Ingredients other than raw or processed agricultural products
may be added to the product if these ingredients include
nonagricultural substances or nonorganically produced agricultural
products produced in a manner consistent with, or which are on the
national list adopted by the United States Secretary of Agriculture
pursuant to Section 6517 of the NOP and do not represent more than 5
percent of the weight of the total finished product, excluding salt
and water.
110825. Materials acceptable in this state are those outlined by
regulations promulgated by the NOP and the provisions of this
article.
110827. No aquaculture, fish, or seafood product, including, but
not limited to, farmed and wild caught species, shall be labeled or
represented as "organic" until formal organic certification standards
have been developed and implemented by the United States Department
of Agriculture's National Organic Program or the California
Department of Food and Agriculture.
110830. (a) No product handled, processed, sold, advertised,
represented, or offered for sale in this state, shall be sold as
organic unless it also is prominently labeled and invoiced with
similar terminology as set forth by regulations promulgated by the
NOP.
(b) No 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.
110835. The director may adopt regulations allowing or prohibiting
the use of substances in the processing of products that are exempt
or excluded from certification under the NOP, and animal food and
cosmetics sold as organic.
110838. (a) Cosmetic products sold, labeled, or represented as
organic or made with organic ingredients shall contain, at least 70
percent organically produced ingredients.
(b) The percentage of all organically produced ingredients in an
agricultural product sold, labeled, or represented as "organic" or
"100 percent organic," or sold, labeled, or represented as being made
with organic ingredients or food groups, or as inclusive of organic
ingredients, shall be calculated as follows:
(1) For products containing organically produced ingredients in
solid form, by dividing the total net weight of combined organic
ingredients at formulation, excluding water and salt, by the total
weight of the finished product, excluding water and salt.
(2) For products containing organically produced ingredients in
liquid form, by dividing the fluid volume of all organic ingredients,
excluding water and salt, by the fluid volume of the finished
product, excluding water and salt. If the liquid product is
identified on the principal display panel or information panel as
being reconstituted from concentrates, the calculation should be made
on the basis of single-strength concentrations of the ingredients
and finished product.
(3) For products containing organically produced ingredients in
both solid and liquid form, by dividing the combined weight of the
solid ingredients and the weight of the liquid ingredients, excluding
water and salt, by the total weight of the finished product,
excluding water and salt.
(c) The percentage of all organically produced ingredients in an
agricultural product must be rounded down to the nearest whole
number.
(d) The percentage of all organically produced ingredients in an
agricultural product must be determined by the handler who affixes
the label to the consumer package and verified by the handler's
certifying agent. The handler may use information provided by the
certified operation in determining the percentage.
110839. Multi-ingredient cosmetic products sold as organic in
California with less than 70 percent organically produced
ingredients, by weight or by fluid volume, excluding water and salt,
may only identify the organic content as follows:
(a) By identifying each organically produced ingredient in the
ingredient statement with the word "organic" or with an asterisk or
other reference mark that is defined below the ingredient statement
to indicate the ingredient is organically produced.
(b) If the organically produced ingredients are identified in the
ingredient statement, by displaying the product's percentage of
organic contents on the information panel.
110840. (a) All persons who handle products sold as organic shall
keep accurate and specific records of the following:
(1) Except when sold to the consumer, the name and address and, if
applicable, the registration numbers issued pursuant to Section
110875 of this code or Section 46002 of the Food and Agricultural
Code 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.
(2) Invoices, bills of lading, or other documents that show
transfer of title of certified organic products must indicate the
product is "organic" or "certified organic" and, if applicable, the
California registration number of the person transferring the
product.
(3) Any person selling a product which is exempt or excluded from
certification under NOP rules, shall follow the requirements of
Section 205.101 of Title 7 of the Code of Federal Regulations.
(4) 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.
(b) All persons who sell, at retail, products sold as organic
shall keep accurate and specific records of the following:
(1) Except when sold to the consumer, the name and address and, if
applicable, the registration numbers issued pursuant to Section
110875 of this code or Section 46002 of the Food and Agricultural
Code of all suppliers of persons, to whom or from whom the product is
sold, purchased, or otherwise transferred, the quantity of product
purchased or otherwise transferred, and the date of the transaction.
(2) Invoices, bills of lading or other documents that show
transfer of title of certified organic products must indicate the
product is "organic" or "certified organic" and, if applicable, the
California registration number of the person transferring the
product.
(3) Any person selling a product that is exempt or excluded from
certification under NOP rules, shall follow the requirements of
Section 205.101 of Title 7 of the Code of Federal Regulations.
(4) 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.
(c) All records required to be kept under this section shall be
maintained as set forth by regulations promulgated by the NOP, when
applicable, or as follows: by producers for not less than three years
and by handlers for not less than two years from the date that the
product is sold, and shall be maintained by retailers for not less
than one year from the date that the product is sold, and shall be
maintained by the retailers for not less than one year from the date
that the product is received by the retailer. These records shall be
made available for inspection at any time by the director or the
secretary and by each certification organization that certifies the
product, if any, for purposes of carrying out this article and
Chapter 10 (commencing with Section 46000) of Division 17 of the Food
and Agricultural Code.
110845. (a) Notwithstanding any other provision of law, any
producer, handler, processor, or retailer of products 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
director, the Attorney General, any prosecuting attorney, any
governmental agency responsible for enforcing laws related to the
production or handling of products sold as organic, or the secretary
of any record required to be kept under this section for purposes of
carrying out this article and Chapter 10 (commencing with Section
46000) of Division 17 of the Food and Agricultural Code. Records
acquired pursuant to this subdivision 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 director and 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
article 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 handler, as described in paragraph (4) of
subdivision (a) of Section 110840, records of previous handlers, if
any, without identifying the previous handlers or producers, and, if
applicable, records obtained as required in subdivision (b).
(2) Records of a retailer, as described in paragraph (4) of
subdivision (b) of Section 110840, records of previous handlers, if
any, as described in paragraph (4) of subdivision (a) of, Section
110840, without identifying the previous handlers, and, if
applicable, records obtained as required in subdivision (b).
This subdivision shall be the exclusive means of public access to
records required to be kept by handlers and retailers under this
article.
A person required to provide records pursuant to a request under
this subdivision, may petition the director or the secretary to deny
the request based on a finding that the request is of a frivolous or
harassing nature. The secretary or director 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 director or the secretary may charge the person requesting
records a reasonable fee to reimburse him or her self or the source
of the records for the cost of reproducing the records requested.
(e) Any person who first imports into this state, for resale,
products sold as organic shall obtain and provide to the enforcement
authority, upon request, proof that the products being sold have been
certified by an accredited certifying organization or have otherwise
been produced in compliance with this article.
(f) The director 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 chapter in response to a
subpoena, the director shall delete any information regarding the
identity of suppliers or customers and the quantity or price of
supplies purchased or products sold.
110850. (a) Following initial United States Department of
Agriculture accreditation of certifying agents as provided in Section
6514 of Title 7 of the United States Code and upon implementation of
the federal organic certification requirement pursuant to the
federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et
seq., Sec. 2101, P.L. 101-624), 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. In
addition products shall be sold as organic only in accordance with
this section, Sections 110855 to 110870, inclusive, and Section 46009
of the Food and Agricultural Code. The secretary, director, and the
county agricultural commissioners shall carry out this subdivision to
the extent that adequate funds are made available for that purpose.
(b) Products sold as organic may be certified only by a
certification organization registered pursuant to Section 46014.1 of
the Food and Agricultural Code or a federally accredited
certification organization.
(c) In order to be registered, a certification organization shall
be accredited by the USDA, if required.
(d) A certification organization that certifies processed products
sold as organic shall register with the secretary.
(e) The director may audit the organization's certification
procedures and records at any time. Records of certification
organizations not otherwise required to be released upon request or
made publicly available shall not be released by the director except
to 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.
110855. Prior to initial certification of a producer, a registered
certification organization shall conduct at least one initial
physical inspection of the premises where the food to be certified is
produced. This inspection shall include the recordkeeping system
necessary for compliance with Section 110840 and the area or facility
at which the food is produced.
110860. (a) A registered certification organization shall no less
often than, at the end of each calendar quarter, prepare a list by
name of all persons whose production or processing of food is
certified or pending certification by the certification organization.
This list shall be filed with the department or the Department of
Food and Agriculture, as applicable, by the certification
organization and made publicly available within 30 days after the end
of each quarter.
(b) A registered certification organization or a federally
accredited certification organization 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.
110865. A registered certification organization shall adopt and
adhere to a certification plan filed annually and made publicly
available. Except in the case of a certification program established
pursuant to subdivision (e) of Section 110850, a certification plan
shall be filed as part of the registration required pursuant to
subdivision (d) of Section 110850. A certification plan shall at
minimum include a detailed description of all of the following
elements of the certification organization's program:
(a) Minimum information required from producers or processors
regarding growing or processing practices and methods for verifying
that information.
(b) Qualifications of and training requirements for all
inspectors.
(c) Procedures for inspection, including frequency and items
covered.
(d) Procedures for soil and tissue sampling and analysis.
(e) Criteria for certification.
(f) Process for certification decisionmaking, including
identification of persons with decisionmaking authority.
110870. Only products that have been handled and processed in
accordance with this article may be certified by a registered
certification organization.
110875. (a) 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) within 30 days of the date on which
the fee is due and payable shall pay a penalty of 1 1/2 percent per
month on the unpaid balance.
(b) 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).
(c) 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), 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), the organic registration
shall be renewed annually using the same expiration month and day as
the two-year license or registration.
(d) A registration form shall be accompanied by payment of a
nonrefundable registration fee payable to the department by handlers
which 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:
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) Revenue received pursuant to this section shall be deposited
in the Food Safety Fund created pursuant to Section 110050.
(f) The director shall reject a registration submission that is
incomplete or not in compliance with this article and regulations
promulgated by the NOP.
(g) The director shall provide a validated certificate to the
registrant.
(h) 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
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) 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) 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) A registration is considered legal and valid until revoked,
suspended, or until the expiration of the registration.
( l) The registration revocation process must 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) 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 be sent to the registrant
and the certifier will notify them that they are no longer able to
market products as organic until the account is paid in full.
(n) Any registration that is more than 60 days late will be
considered invalid and it is a violation if product is sold as
organic.
110880. This article shall apply to all products sold as organic
within the state, wherever produced, handled, or processed, and to
all products produced, that are handled or processed in the state,
wherever sold as organic.
110885. This article shall not apply to the term "natural" when
used in the labeling or advertising of a product.
110890. (a) It is unlawful for any person to sell, offer for sale,
advertise, or label any product in violation of this article.
(b) Notwithstanding subdivision (a), a person engaged in business
as a distributor or retailer of products who in good faith sells,
offers for sale, labels, or advertises any product in reliance on the
representations of a producer, handler, or other distributor that
the product may be sold as organic, shall not be found to violate
this article 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; or (3) prescribed or
specified the manner in which the product was produced or processed.
110895. (a) It is unlawful for any person to certify products in
violation of this article.
(b) It is unlawful for any person to certify products as organic
unless duly registered or accredited as a certification organization
pursuant to Section 110850.
(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 Section 110850.
110900. (a) It is unlawful for any person to produce, handle, or
process products sold as organic unless duly registered pursuant to
Section 110875.
(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 110875.
110905. It is unlawful for any person to forge, falsify, fail to
retain, fail to obtain, or fail to disclose records pursuant to
Sections 110840 and 110845.
110910. It is unlawful for any person to do any of the following:
(a) 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) Alter any organic registration form.
(c) Alter any certification document.
(d) Falsify any document.
(e) Use the term "transitional organic" in this state to represent
a product for sale.
110915. (a) In lieu of prosecution, the director may levy a civil
penalty against any person who violates this article, any regulation
adopted pursuant to this article, or any regulation promulgated 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 article, 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 director finds that a violation was not intentional, the
director 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 subdivisions (a) and (b), the director 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 levied shall be
afforded an opportunity for a hearing before the director, upon
request made within 30 days after the date of issuance of the notice
of penalty. At the hearing, the person shall be given the right to
review the director'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 decision of the director
may be sought by any person within 30 days of the date of the final
order of the director pursuant to Section 1094.5 of the Code of Civil
Procedure.
(f) A civil penalty levied by the director pursuant to this
section may be recovered in a civil action brought in the name of the
state.
110920. 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.
110925. Any fees and civil penalties collected pursuant to this
article shall be deposited in the General Fund and, upon
appropriation by the Legislature, shall be expended to fulfill the
responsibilities of the director as specified in this article.
110930. The director shall, to the extent funds are available,
enforce this article applicable to all processors and handlers of
processed products sold as organic, including handlers and processors
of fish and seafood, cosmetics, and animal food products sold as
organic, except for processors and handlers of processed meat, fowl,
and dairy products.
110935. The director shall maintain in a central location, and make
publicly available for inspection and copying, upon request, a list
of all penalties levied within the past five years, including the
amount of each penalty, the party against whom the penalty was
levied, and the nature of the violation. The list also shall be
available by mail, upon written request and payment of a reasonable
fee, as determined by the director.
110940. (a) Any person may file a complaint with the director
concerning suspected noncompliance with this article by a person over
whom the director has responsibility as provided in this article or
regulations adopted by the NOP.
(b) The director shall, to the extent funds are available,
establish a procedure for handling complaints, including, provision
of a written complaint form, and procedures for commencing an
investigation within three working days of receiving a written
complaint regarding fresh food, and within seven working days for
other product, and completing an investigation and reporting findings
and enforcement action taken, if any, to the complainant within 90
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 responsibilities of the director under this section shall
be carried out to the extent funds are available.
(e) The complaint process in this state shall also meet all the
complaint processes outlined in regulations promulgated by the NOP.
110945. This article shall apply notwithstanding any other
provision of law that is inconsistent with this article. Nothing in
this article is intended to repeal any other provision of law not
inconsistent with this article.
110950. The director may adopt any regulations as are reasonably
necessary to assist in the implementation of, or to make more
specific, the provisions of, this article.
110955. Any reference in law to former Section 26569.11, whether
existing or hereinafter enacted, shall be interpreted to refer to
this article and Chapter 10 (commencing with Section 46000) of
Division 17 of the Food and Agricultural Code as the successor
section.
110956. (a) All organic product regulations and any amendments to
those regulations adopted pursuant to the NOP, that are in effect on
the date this bill is enacted or that are adopted after that date
shall be the organic product regulations of this state.
(b) The director may, by regulation, prescribe conditions under
which organic products not addressed by the National Organic Program
may be sold in this state.
110957. It shall be unlawful for a person to represent in
advertising or labeling that the person or the products of the person
are registered pursuant to this article.
110958. Annually, the director shall compile and publish and submit
to the California Organic Products Advisory Committee a summary of
information collected under Section 110875, including, but not
limited to, the following:
(a) The total number of registrations received under this section.
(b) The total number and quantity of each type of product sold as
organic by all registrants combined.
(c) The total annual organic gross sales volume or revenue of all
registrants combined, and the median gross annual organic sales or
revenue of all registrants.
(d) The names of all registrants.
(e) The number of registrants in each of the following ranges of
annual gross sales volume:
(1) $0-$5,000
(2) $5,001-$25,000
(3) $25,001-$50,000
(4) $50,001-$125,000
(5) $125,001-$250,000
(6) $250,001-$500,000
(7) $500,001-$750,000
(8) $750,001-$1,000,000
(9) $1,000,001-$1,500,000
(10) $1,500,001-$2,500,000
(11) $2,500,001-$10,000,000
(12) $10,000,001-$30,000,000
(13) $30,000,001 and above.
(f) The report published pursuant to this section shall present
the required information in an aggregate form that preserves the
confidentiality of the proprietary information of individual
registrants.
110959. Beginning January 1, 2003, the director shall conduct a
program of spot inspections of persons required to register pursuant
to Section 110875 to verify continuing compliance with this article
and the regulations adopted by the NOP according to uniform
procedures established by the director and regulations promulgated by
the NOP.
110810. This article shall be known, and may be cited as, the
California Organic Products Act of 2003.
110811. This article shall be interpreted in conjunction with
Chapter 10 (commencing with Section 46000) of Division 17 of the Food
and Agricultural Code and the regulations promulgated 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.)).
110812. The director 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.
110815. Unless otherwise defined pursuant to the National Organic
Program, the following words and phrases, when used in this article,
shall have the following meanings:
(a) "Animal food" means any food intended to be fed to any
household animal, including, but not limited to, cats, or dogs and
other carnivores. It does not include "feed" intended for livestock
as defined in Section 205.2 of Title 7 of the Code of Federal
Regulations.
(b) "Director" means the Director of the Department of Health
Services.
(c) "Enforcement authority" means the governmental unit with
primary enforcement jurisdiction, as provided in Section 110930.
(d) "Handle" means to sell, process, or package agricultural
products.
(e) "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.
(f) "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.
(g) "NOP" means the National Organic Program established pursuant
to the Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et
seq.) and the regulations adopted for implementation.
(h) "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.
(i) "Prohibited materials" means any materials prohibited under
regulations adopted by (Section 6517 of the federal Organic Foods
Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)). For products
not covered by the National Organic Program, prohibited materials are
anything not on the approved list.
(j) "Secretary" means the Secretary of the California Department
of Food and Agriculture.
(k) "Sold as organic" means any use of the terms "organic,"
"organically grown," or grammatical variations of those terms,
whether orally or in writing, in connection with any product grown,
handled, processed, sold, or offered for sale in this state,
including, but not limited to, any use of these terms in labeling or
advertising of any product and any ingredient in a multi-ingredient
product.
( l) "USDA" means the United States Department of Agriculture.
110818. Water, including substances dissolved in water, shall not
be a prohibited material, even if it contains incidental
contamination from a prohibited material, if the prohibited material
was not added by, or under the direction or control of, the person in
control of the product.
110820. Except as otherwise provided in this article, no product
shall be sold as organic pursuant to this article unless it is
produced according to regulations promulgated by the NOP, and
consists entirely of products manufactured only from raw or processed
agricultural products except as follows:
(a) Water, air, and salt may be added to the product.
(b) Ingredients other than raw or processed agricultural products
may be added to the product if these ingredients include
nonagricultural substances or nonorganically produced agricultural
products produced in a manner consistent with, or which are on the
national list adopted by the United States Secretary of Agriculture
pursuant to Section 6517 of the NOP and do not represent more than 5
percent of the weight of the total finished product, excluding salt
and water.
110825. Materials acceptable in this state are those outlined by
regulations promulgated by the NOP and the provisions of this
article.
110827. No aquaculture, fish, or seafood product, including, but
not limited to, farmed and wild caught species, shall be labeled or
represented as "organic" until formal organic certification standards
have been developed and implemented by the United States Department
of Agriculture's National Organic Program or the California
Department of Food and Agriculture.
110830. (a) No product handled, processed, sold, advertised,
represented, or offered for sale in this state, shall be sold as
organic unless it also is prominently labeled and invoiced with
similar terminology as set forth by regulations promulgated by the
NOP.
(b) No 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.
110835. The director may adopt regulations allowing or prohibiting
the use of substances in the processing of products that are exempt
or excluded from certification under the NOP, and animal food and
cosmetics sold as organic.
110838. (a) Cosmetic products sold, labeled, or represented as
organic or made with organic ingredients shall contain, at least 70
percent organically produced ingredients.
(b) The percentage of all organically produced ingredients in an
agricultural product sold, labeled, or represented as "organic" or
"100 percent organic," or sold, labeled, or represented as being made
with organic ingredients or food groups, or as inclusive of organic
ingredients, shall be calculated as follows:
(1) For products containing organically produced ingredients in
solid form, by dividing the total net weight of combined organic
ingredients at formulation, excluding water and salt, by the total
weight of the finished product, excluding water and salt.
(2) For products containing organically produced ingredients in
liquid form, by dividing the fluid volume of all organic ingredients,
excluding water and salt, by the fluid volume of the finished
product, excluding water and salt. If the liquid product is
identified on the principal display panel or information panel as
being reconstituted from concentrates, the calculation should be made
on the basis of single-strength concentrations of the ingredients
and finished product.
(3) For products containing organically produced ingredients in
both solid and liquid form, by dividing the combined weight of the
solid ingredients and the weight of the liquid ingredients, excluding
water and salt, by the total weight of the finished product,
excluding water and salt.
(c) The percentage of all organically produced ingredients in an
agricultural product must be rounded down to the nearest whole
number.
(d) The percentage of all organically produced ingredients in an
agricultural product must be determined by the handler who affixes
the label to the consumer package and verified by the handler's
certifying agent. The handler may use information provided by the
certified operation in determining the percentage.
110839. Multi-ingredient cosmetic products sold as organic in
California with less than 70 percent organically produced
ingredients, by weight or by fluid volume, excluding water and salt,
may only identify the organic content as follows:
(a) By identifying each organically produced ingredient in the
ingredient statement with the word "organic" or with an asterisk or
other reference mark that is defined below the ingredient statement
to indicate the ingredient is organically produced.
(b) If the organically produced ingredients are identified in the
ingredient statement, by displaying the product's percentage of
organic contents on the information panel.
110840. (a) All persons who handle products sold as organic shall
keep accurate and specific records of the following:
(1) Except when sold to the consumer, the name and address and, if
applicable, the registration numbers issued pursuant to Section
110875 of this code or Section 46002 of the Food and Agricultural
Code 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.
(2) Invoices, bills of lading, or other documents that show
transfer of title of certified organic products must indicate the
product is "organic" or "certified organic" and, if applicable, the
California registration number of the person transferring the
product.
(3) Any person selling a product which is exempt or excluded from
certification under NOP rules, shall follow the requirements of
Section 205.101 of Title 7 of the Code of Federal Regulations.
(4) 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.
(b) All persons who sell, at retail, products sold as organic
shall keep accurate and specific records of the following:
(1) Except when sold to the consumer, the name and address and, if
applicable, the registration numbers issued pursuant to Section
110875 of this code or Section 46002 of the Food and Agricultural
Code of all suppliers of persons, to whom or from whom the product is
sold, purchased, or otherwise transferred, the quantity of product
purchased or otherwise transferred, and the date of the transaction.
(2) Invoices, bills of lading or other documents that show
transfer of title of certified organic products must indicate the
product is "organic" or "certified organic" and, if applicable, the
California registration number of the person transferring the
product.
(3) Any person selling a product that is exempt or excluded from
certification under NOP rules, shall follow the requirements of
Section 205.101 of Title 7 of the Code of Federal Regulations.
(4) 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.
(c) All records required to be kept under this section shall be
maintained as set forth by regulations promulgated by the NOP, when
applicable, or as follows: by producers for not less than three years
and by handlers for not less than two years from the date that the
product is sold, and shall be maintained by retailers for not less
than one year from the date that the product is sold, and shall be
maintained by the retailers for not less than one year from the date
that the product is received by the retailer. These records shall be
made available for inspection at any time by the director or the
secretary and by each certification organization that certifies the
product, if any, for purposes of carrying out this article and
Chapter 10 (commencing with Section 46000) of Division 17 of the Food
and Agricultural Code.
110845. (a) Notwithstanding any other provision of law, any
producer, handler, processor, or retailer of products 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
director, the Attorney General, any prosecuting attorney, any
governmental agency responsible for enforcing laws related to the
production or handling of products sold as organic, or the secretary
of any record required to be kept under this section for purposes of
carrying out this article and Chapter 10 (commencing with Section
46000) of Division 17 of the Food and Agricultural Code. Records
acquired pursuant to this subdivision 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 director and 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
article 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 handler, as described in paragraph (4) of
subdivision (a) of Section 110840, records of previous handlers, if
any, without identifying the previous handlers or producers, and, if
applicable, records obtained as required in subdivision (b).
(2) Records of a retailer, as described in paragraph (4) of
subdivision (b) of Section 110840, records of previous handlers, if
any, as described in paragraph (4) of subdivision (a) of, Section
110840, without identifying the previous handlers, and, if
applicable, records obtained as required in subdivision (b).
This subdivision shall be the exclusive means of public access to
records required to be kept by handlers and retailers under this
article.
A person required to provide records pursuant to a request under
this subdivision, may petition the director or the secretary to deny
the request based on a finding that the request is of a frivolous or
harassing nature. The secretary or director 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 director or the secretary may charge the person requesting
records a reasonable fee to reimburse him or her self or the source
of the records for the cost of reproducing the records requested.
(e) Any person who first imports into this state, for resale,
products sold as organic shall obtain and provide to the enforcement
authority, upon request, proof that the products being sold have been
certified by an accredited certifying organization or have otherwise
been produced in compliance with this article.
(f) The director 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 chapter in response to a
subpoena, the director shall delete any information regarding the
identity of suppliers or customers and the quantity or price of
supplies purchased or products sold.
110850. (a) Following initial United States Department of
Agriculture accreditation of certifying agents as provided in Section
6514 of Title 7 of the United States Code and upon implementation of
the federal organic certification requirement pursuant to the
federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et
seq., Sec. 2101, P.L. 101-624), 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. In
addition products shall be sold as organic only in accordance with
this section, Sections 110855 to 110870, inclusive, and Section 46009
of the Food and Agricultural Code. The secretary, director, and the
county agricultural commissioners shall carry out this subdivision to
the extent that adequate funds are made available for that purpose.
(b) Products sold as organic may be certified only by a
certification organization registered pursuant to Section 46014.1 of
the Food and Agricultural Code or a federally accredited
certification organization.
(c) In order to be registered, a certification organization shall
be accredited by the USDA, if required.
(d) A certification organization that certifies processed products
sold as organic shall register with the secretary.
(e) The director may audit the organization's certification
procedures and records at any time. Records of certification
organizations not otherwise required to be released upon request or
made publicly available shall not be released by the director except
to 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.
110855. Prior to initial certification of a producer, a registered
certification organization shall conduct at least one initial
physical inspection of the premises where the food to be certified is
produced. This inspection shall include the recordkeeping system
necessary for compliance with Section 110840 and the area or facility
at which the food is produced.
110860. (a) A registered certification organization shall no less
often than, at the end of each calendar quarter, prepare a list by
name of all persons whose production or processing of food is
certified or pending certification by the certification organization.
This list shall be filed with the department or the Department of
Food and Agriculture, as applicable, by the certification
organization and made publicly available within 30 days after the end
of each quarter.
(b) A registered certification organization or a federally
accredited certification organization 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.
110865. A registered certification organization shall adopt and
adhere to a certification plan filed annually and made publicly
available. Except in the case of a certification program established
pursuant to subdivision (e) of Section 110850, a certification plan
shall be filed as part of the registration required pursuant to
subdivision (d) of Section 110850. A certification plan shall at
minimum include a detailed description of all of the following
elements of the certification organization's program:
(a) Minimum information required from producers or processors
regarding growing or processing practices and methods for verifying
that information.
(b) Qualifications of and training requirements for all
inspectors.
(c) Procedures for inspection, including frequency and items
covered.
(d) Procedures for soil and tissue sampling and analysis.
(e) Criteria for certification.
(f) Process for certification decisionmaking, including
identification of persons with decisionmaking authority.
110870. Only products that have been handled and processed in
accordance with this article may be certified by a registered
certification organization.
110875. (a) 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) within 30 days of the date on which
the fee is due and payable shall pay a penalty of 1 1/2 percent per
month on the unpaid balance.
(b) 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).
(c) 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), 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), the organic registration
shall be renewed annually using the same expiration month and day as
the two-year license or registration.
(d) A registration form shall be accompanied by payment of a
nonrefundable registration fee payable to the department by handlers
which 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:
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) Revenue received pursuant to this section shall be deposited
in the Food Safety Fund created pursuant to Section 110050.
(f) The director shall reject a registration submission that is
incomplete or not in compliance with this article and regulations
promulgated by the NOP.
(g) The director shall provide a validated certificate to the
registrant.
(h) 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
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) 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) 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) A registration is considered legal and valid until revoked,
suspended, or until the expiration of the registration.
( l) The registration revocation process must 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) 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 be sent to the registrant
and the certifier will notify them that they are no longer able to
market products as organic until the account is paid in full.
(n) Any registration that is more than 60 days late will be
considered invalid and it is a violation if product is sold as
organic.
110880. This article shall apply to all products sold as organic
within the state, wherever produced, handled, or processed, and to
all products produced, that are handled or processed in the state,
wherever sold as organic.
110885. This article shall not apply to the term "natural" when
used in the labeling or advertising of a product.
110890. (a) It is unlawful for any person to sell, offer for sale,
advertise, or label any product in violation of this article.
(b) Notwithstanding subdivision (a), a person engaged in business
as a distributor or retailer of products who in good faith sells,
offers for sale, labels, or advertises any product in reliance on the
representations of a producer, handler, or other distributor that
the product may be sold as organic, shall not be found to violate
this article 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; or (3) prescribed or
specified the manner in which the product was produced or processed.
110895. (a) It is unlawful for any person to certify products in
violation of this article.
(b) It is unlawful for any person to certify products as organic
unless duly registered or accredited as a certification organization
pursuant to Section 110850.
(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 Section 110850.
110900. (a) It is unlawful for any person to produce, handle, or
process products sold as organic unless duly registered pursuant to
Section 110875.
(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 110875.
110905. It is unlawful for any person to forge, falsify, fail to
retain, fail to obtain, or fail to disclose records pursuant to
Sections 110840 and 110845.
110910. It is unlawful for any person to do any of the following:
(a) 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) Alter any organic registration form.
(c) Alter any certification document.
(d) Falsify any document.
(e) Use the term "transitional organic" in this state to represent
a product for sale.
110915. (a) In lieu of prosecution, the director may levy a civil
penalty against any person who violates this article, any regulation
adopted pursuant to this article, or any regulation promulgated 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 article, 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 director finds that a violation was not intentional, the
director 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 subdivisions (a) and (b), the director 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 levied shall be
afforded an opportunity for a hearing before the director, upon
request made within 30 days after the date of issuance of the notice
of penalty. At the hearing, the person shall be given the right to
review the director'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 decision of the director
may be sought by any person within 30 days of the date of the final
order of the director pursuant to Section 1094.5 of the Code of Civil
Procedure.
(f) A civil penalty levied by the director pursuant to this
section may be recovered in a civil action brought in the name of the
state.
110920. 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.
110925. Any fees and civil penalties collected pursuant to this
article shall be deposited in the General Fund and, upon
appropriation by the Legislature, shall be expended to fulfill the
responsibilities of the director as specified in this article.
110930. The director shall, to the extent funds are available,
enforce this article applicable to all processors and handlers of
processed products sold as organic, including handlers and processors
of fish and seafood, cosmetics, and animal food products sold as
organic, except for processors and handlers of processed meat, fowl,
and dairy products.
110935. The director shall maintain in a central location, and make
publicly available for inspection and copying, upon request, a list
of all penalties levied within the past five years, including the
amount of each penalty, the party against whom the penalty was
levied, and the nature of the violation. The list also shall be
available by mail, upon written request and payment of a reasonable
fee, as determined by the director.
110940. (a) Any person may file a complaint with the director
concerning suspected noncompliance with this article by a person over
whom the director has responsibility as provided in this article or
regulations adopted by the NOP.
(b) The director shall, to the extent funds are available,
establish a procedure for handling complaints, including, provision
of a written complaint form, and procedures for commencing an
investigation within three working days of receiving a written
complaint regarding fresh food, and within seven working days for
other product, and completing an investigation and reporting findings
and enforcement action taken, if any, to the complainant within 90
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 responsibilities of the director under this section shall
be carried out to the extent funds are available.
(e) The complaint process in this state shall also meet all the
complaint processes outlined in regulations promulgated by the NOP.
110945. This article shall apply notwithstanding any other
provision of law that is inconsistent with this article. Nothing in
this article is intended to repeal any other provision of law not
inconsistent with this article.
110950. The director may adopt any regulations as are reasonably
necessary to assist in the implementation of, or to make more
specific, the provisions of, this article.
110955. Any reference in law to former Section 26569.11, whether
existing or hereinafter enacted, shall be interpreted to refer to
this article and Chapter 10 (commencing with Section 46000) of
Division 17 of the Food and Agricultural Code as the successor
section.
110956. (a) All organic product regulations and any amendments to
those regulations adopted pursuant to the NOP, that are in effect on
the date this bill is enacted or that are adopted after that date
shall be the organic product regulations of this state.
(b) The director may, by regulation, prescribe conditions under
which organic products not addressed by the National Organic Program
may be sold in this state.
110957. It shall be unlawful for a person to represent in
advertising or labeling that the person or the products of the person
are registered pursuant to this article.
110958. Annually, the director shall compile and publish and submit
to the California Organic Products Advisory Committee a summary of
information collected under Section 110875, including, but not
limited to, the following:
(a) The total number of registrations received under this section.
(b) The total number and quantity of each type of product sold as
organic by all registrants combined.
(c) The total annual organic gross sales volume or revenue of all
registrants combined, and the median gross annual organic sales or
revenue of all registrants.
(d) The names of all registrants.
(e) The number of registrants in each of the following ranges of
annual gross sales volume:
(1) $0-$5,000
(2) $5,001-$25,000
(3) $25,001-$50,000
(4) $50,001-$125,000
(5) $125,001-$250,000
(6) $250,001-$500,000
(7) $500,001-$750,000
(8) $750,001-$1,000,000
(9) $1,000,001-$1,500,000
(10) $1,500,001-$2,500,000
(11) $2,500,001-$10,000,000
(12) $10,000,001-$30,000,000
(13) $30,000,001 and above.
(f) The report published pursuant to this section shall present
the required information in an aggregate form that preserves the
confidentiality of the proprietary information of individual
registrants.
110959. Beginning January 1, 2003, the director shall conduct a
program of spot inspections of persons required to register pursuant
to Section 110875 to verify continuing compliance with this article
and the regulations adopted by the NOP according to uniform
procedures established by the director and regulations promulgated by
the NOP.
