Chapter 320 Oregon Laws 2001

AN ACT

SB 312

Relating to organic foods; creating new provisions; amending ORS 616.205, 616.215, 616.250, 616.256, 616.286, 616.320, 616.780 and 616.900; repealing ORS 616.406, 616.411, 616.416, 616.421, 616.426 and 616.900; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Notwithstanding ORS 616.900, the State Department of Agriculture may not impose a civil penalty for the violation of a provision of ORS 616.406 to 616.421 or a rule adopted pursuant to ORS 616.426 if the department determines that, on the date of the violation, the action constituting the violation did not also constitute a violation of federal rules adopted and published on December 21, 2000, at 65 Fed. Reg. 80,637 to 80,663 (2000), pursuant to the Organic Foods Production Act of 1990, 7 U.S.C. 6501 to 6522.

SECTION 2. ORS 616.205 is amended to read:

616.205. As used in ORS 616.205 to 616.426 [and 616.900], unless the context clearly indicates a different meaning:

(1) “Advertisement” includes all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of the food.

(2)(a) “Color additive” means a material which:

(A) Is a dye, pigment, or other substance made by a process of synthesis or similar artifice, or extracted, isolated, or otherwise derived, with or without intermediate or final change of identity, from a vegetable, animal, mineral, or other source; or

(B) When added or applied to a food or to the human body or any part thereof, is capable, alone or through reaction with other substance, of imparting color thereto.

However, “color additive” does not include any material which has been exempted under the federal Act.

(b) The term “color” includes black, white and intermediate grays.

(c) Nothing in paragraph (a) of this subsection applies to any pesticide chemical, soil or plant nutrient, or other agricultural chemical solely because of its effect in aiding, retarding or otherwise affecting, directly or indirectly, the growth or other natural physiological process of produce of the soil and thereby affecting its color, whether before or after harvest.

(3) “Consumer commodity” means any food as defined by ORS 616.205 to 616.215, 616.225 to 616.256, 616.286, 616.295, 616.310, 616.315, 616.325, 616.330, 616.341, 616.350 to 616.366, 616.790 and 616.992 or by the federal Act.

(4) “Contaminated with filth” means the condition of any food not securely protected from dust, dirt and, as far as may be necessary by all reasonable means, from all foreign or injurious substances.

(5) “Director” means the Director of Agriculture.

(6) “Federal Act” means the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq., 52 Stat. 1040 et seq.

(7) “Food” means:

(a) Articles used for food or drink, including ice, for human consumption or food for dogs and cats;

(b) Chewing gum; and

(8) “Food additive” means any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food, including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food, and including any source of radiation intended for any such use, if such substance is not generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures or experience based on common use in food to be safe under the conditions of its intended use. “Food additive” does not include:

(a) A pesticide chemical in or on a raw agricultural commodity;

(b) A pesticide chemical to the extent that it is intended for use, or is used in the production, storage or transportation of any raw agricultural commodity; or

(9) “Food establishment” means:

(a) Any room, building, structure or place, used or intended for use, or operated for storing, preparing, compounding, manufacturing, processing, freezing, packaging, distributing, handling or displaying food.

(b) The ground upon which such place or business is operated or used and so much ground adjacent thereto as is also used in carrying on the business of the establishment. The State Department of Agriculture may prescribe such additional area or places which, although they may not be contiguous or adjacent to the above area or establishment, may be included therein.

(c) Vehicles, machinery, equipment, utensils, tools, fixtures, implements and all other articles or items, used in operating or carrying on the business of a food establishment.

(10) “Immediate container” does not include package liners.

(11) “Label” means a display of written, printed or graphic matter upon the immediate container of any article. A requirement made under authority of ORS 616.205 to 616.215, 616.225 to 616.256, 616.286, 616.295, 616.310, 616.315, 616.325, 616.330, 616.341, 616.350 to 616.366, 616.790 and 616.992 that any word, statement or other information appears on a label has not been obeyed unless such word, statement or other information also appears on the outside container or wrapper, if any there be, of the retail package of such article or unless such word, statement or information is easily legible through the outside container or wrapper.

(12) “Labeling” means all labels and other written, printed or graphic matters upon an article or any of its containers or wrappers, or accompanying such article.

(13) “Package” means any container or wrapping in which any consumer commodity is enclosed for use in the delivery or display of that consumer commodity to retail purchasers, but does not include:

(a) Shipping containers or wrappings used solely for the transportation of any consumer commodity in bulk or in quantity to manufacturers, packers or processors, or to wholesale or retail distributors thereof; or

(b) Shipping containers or outer wrappings used by retailers to ship or deliver any commodity to retail customers if such containers and wrappings bear no printed matter pertaining to any particular commodity.

(14) “Pesticide chemical” means any substance which, alone, in chemical combination or in formulation with one or more other substances is a “pesticide” as defined in ORS 634.006.

(15) “Principal display panel” means that part of a label that is most likely to be displayed, presented, shown or examined under normal and customary conditions of display for retail sale.

(16) “Raw agricultural commodity” means any food in its raw or natural state, including all fruits that are washed, colored, or otherwise treated in their unpeeled natural form prior to marketing.

SECTION 3. ORS 616.215 is amended to read:

616.215. The following acts and the causing thereof within the State of Oregon are prohibited:

(1) The manufacture, sale or delivery, holding or offering for sale of any food that is adulterated or misbranded.

(2) The adulteration or misbranding of any food.

(3) The receipt in commerce of any food that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise.

(4) The distribution in commerce of a consumer commodity if such commodity is contained in a package, or if there is affixed to that commodity a label, which does not conform to ORS 616.205 to 616.215, 616.225 to 616.256, 616.286, 616.295, 616.310, 616.315, 616.325, 616.330, 616.341, 616.350 to 616.366, 616.790 and 616.992 and of rules promulgated pursuant thereto. However, this prohibition does not apply to persons engaged in business as wholesale or retail distributors of consumer commodities except to the extent that such persons:

(a) Are engaged in the packaging or labeling of such commodities; or

(b) Prescribe or specify by any means the manner in which such commodities are packaged or labeled.

(5) The dissemination of any false advertisement.

(6) The refusal to permit entry or inspection, or to permit the taking of a sample, or to permit access to or the copying of any record, as authorized.

(7) The giving of a guaranty or undertaking which is false, except by a person who relied on a guaranty or undertaking to the same effect signed by, and containing the name and address of the person from whom the person received in good faith the food.

(8) The removal or disposal of a detained or embargoed article in violation of ORS 616.225.

(9) The alteration, mutilation, destruction, obliteration or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a food, if such act is done while such article is held for sale and results in such article being adulterated or misbranded.

(10) Forging, counterfeiting, simulating or falsely representing, or without proper authority using any mark, stamp, tag, label or other identification device authorized or required by rules promulgated under the provisions of ORS 616.205 to 616.295 and 616.305 to 616.315.

(11) The use by any person to the person’s own advantage, or disclosure, other than to the Director of Agriculture or the authorized representative of the director or to the courts when relevant in any judicial proceeding under ORS 616.205 to 616.426 [and 616.900], of any information acquired under the authority of ORS 616.205 to 616.426 [and 616.900] concerning any method or process which is a trade secret entitled to protection.

SECTION 4. ORS 616.250 is amended to read:

616.250. A food shall be deemed to be misbranded:

(1) If its labeling is false or misleading in any particular, or fails to conform to ORS 616.325.

(2) If it is offered for sale under the name of another food.

(3) If it is an imitation of another food, unless its label bears in type of uniform size and prominence the word “imitation” and, immediately thereafter, the name of the food imitated.

(4) If its container is so made, formed or filled as to be misleading.

(5) If in package form:

(a) Unless it bears a label containing:

(A) The name and place of business of the manufacturer, packer or distributor; and

(B) An accurate statement of the net quantity of the contents in terms of weight, measure, volume or numerical count. The statement shall be separately and accurately stated upon the principal display panel of the label.

(b) The same reasonable variations allowed in ORS chapter 618 shall be permitted.

(6) If any word, statement or other information required by or under authority of ORS 616.205 to 616.295 to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

(7) If it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by rule as provided by ORS 616.230, unless it conforms to such definition and standard and its label bears the name of the food specified in the definition and standard, and, in so far as may be required by such rule, the common names of optional ingredients, other than spices, flavoring and coloring present in such food.

(8) If it purports to be or is represented as a food for which a standard of quality has been prescribed by rule as provided by ORS 616.230 and its quality falls below the standards such rule specifies, a statement that it falls below such standard.

(9) If it is a food for which a standard or standards of fill of container have been prescribed by rule as provided by ORS 616.230, and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such rule specifies, a statement that it falls below such standard.

(10) If it is not subject to the provisions of subsection (7) of this section, unless its label bears:

(a) The common or usual name of the food, if any there be; and

(b) In case it is fabricated from two or more ingredients, the common or usual name of each such ingredient.

However, spices, flavorings and colorings, other than those sold as such, may be designated as spices, flavorings and colorings, without naming them. To the extent that compliance with the requirements of paragraph (b) of this subsection is impractical or results in deception or unfair competition, exemptions shall be established by rule promulgated by the department.

(11) If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral and other dietary properties as the department determines to be, and by rule prescribed as, necessary in order to fully inform purchasers as to its value for such uses.

(12) If it bears or contains any artificial flavoring, artificial coloring or chemical preservative, unless it bears labeling stating that fact. To the extent that compliance with the requirements of this subsection is impracticable, exemptions shall be established by rule promulgated by the department. This subsection and subsections (7) and (10) of this section with respect to artificial coloring do not prohibit the use of harmless coloring matter in butter, cheese or ice cream. The provisions of this subsection with respect to chemical preservatives do not apply to a pesticide chemical when used in or on a raw agricultural commodity which is the product of the soil.

(13) If it is a raw agricultural commodity which is the product of the soil, bearing or containing a pesticide chemical applied after harvest, unless the shipping container of such commodity bears labeling which declares the presence of such chemical in or on such commodity and the common or usual name and the function of such chemical. However, no such declaration is required while such commodity, having been removed from the shipping container, is being held or displayed for sale at retail out of such container in accordance with the custom of the trade.

(14) If following the labeled directions or instructions on the product in using it as a food ingredient will result in the final food being adulterated or misbranded.

(15) If it is a color additive, unless its packaging and labeling are in conformity with the packaging and labeling requirements applicable to such color additive prescribed under the provisions of the federal Act.

(16) If it has been salvaged, unless it bears labeling or notification stating that fact. For the purposes of this subsection, “salvaged” means the reconditioning, repacking, relabeling, cleaning or culling of foods that have been damaged or adulterated as a result of fire, storm, flood, water, smoke, chemicals, radiation or commercial transit accident.

[(17) If it purports to be or is represented as a food that is organically grown or processed and it fails to comply with ORS 616.406 and 616.421.]

[(18) If it purports to be or is represented as a food that is transitional and it fails to comply with ORS 616.406 to 616.421.]

SECTION 5. ORS 616.256 is amended to read:

616.256. The State Department of Agriculture may by rule exempt from any of the labeling requirements of ORS 616.205 to 616.426 [and 616.900], food which is, in accordance with the practice of the trade, to be processed, labeled or repacked in substantial quantities at establishments other than those where originally processed or packed. Such exemptions shall be conditioned upon the fact that such food is not adulterated or misbranded under the provisions of ORS 616.205 to 616.426 [and 616.900], upon the removal from such processing, labeling or repacking establishment.

SECTION 6. ORS 616.286 is amended to read:

616.286. (1) For purposes of enforcement of ORS 616.205 to 616.426 [and 616.900], the State Department of Agriculture or any of its authorized representatives are authorized upon presentation of appropriate credentials to the owner, operator or agent in charge:

(a) To enter at reasonable times any food establishment or warehouse in which food is being held for introduction into commerce or vehicle being used to transport, hold or introduce such food in commerce.

(b) To inspect at reasonable times and within reasonable limits such food establishment, warehouse or vehicle and all pertinent equipment, finished and unfinished materials, containers and labeling therein, and to obtain samples necessary to the enforcement of ORS 616.205 to 616.426 [and 616.900].

(c) To have access to and to copy all records of carriers in commerce showing the movement in commerce of any food or the holding thereof during or after such movement, and the quantity, shipper and consignee thereof. Evidence obtained under the authority of this paragraph [shall] may not be used in a criminal prosecution of the person from whom obtained and carriers [shall] are not [be] subject to other provisions of ORS 616.205 to 616.426 [and 616.900] by reason of their receipt, carriage, holding or delivery of food in the usual course of business as carriers.

(d) To enter at reasonable times any retail food establishment holding a valid liquor license to insure that the retail establishment properly posts the sign required by ORS 471.551.

(2) Upon completion of any inspection of a food establishment, warehouse or vehicle, and prior to leaving the premises, the authorized representative of the department making the inspection shall furnish to the owner, operator or agent in charge a written report setting forth any conditions or practices observed by such representatives which in the judgment of the representative indicate that any food in such establishment, warehouse or vehicle:

(a) Consists in whole or in part of any filthy, putrid or decomposed substance; or

(b) Has been prepared, packed or held, in whole or in part, under insanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered injurious to health.

(3) If the authorized representative of the department making any inspection of a food establishment, warehouse or vehicle has obtained samples in the course of such inspection, upon completion of the inspection and prior to leaving the premises, the representative shall furnish to the owner, operator or agent in charge a receipt describing the samples obtained, and shall tender or offer payment therefor.

(4) If samples are obtained as provided in subsection (3) of this section, and analyses are made of such samples for the purpose of ascertaining whether such food consists in whole or in part of any filthy, putrid or decomposed substance or is otherwise unfit for food, a copy of the results of such analyses shall be furnished by the department to the owner, operator or agent in charge.

SECTION 7. ORS 616.320 is amended to read:

616.320. ORS 616.205 to 616.426 [and 616.900] may be cited as the Oregon Food Law.

SECTION 8. ORS 616.780 is amended to read:

616.780. The State Department of Agriculture shall adopt and promulgate standards of identity or standards of quality for flours, macaroni products and noodle products pursuant to the provisions of ORS 616.230 for those flours, macaroni products and noodle products for which definitions and standards have been promulgated by authority of the United States. The definitions and standards so promulgated shall conform so far as practicable to the definitions and standards promulgated by authority of the United States and [shall] may not be inconsistent with definitions and standards promulgated by such authority. The department shall periodically amend its definitions and standards so as to keep in harmony as far as practicable with the definitions and standards promulgated by authority of the United States. The other applicable provisions of ORS 616.205 to 616.426 [and 616.900] shall apply to such flours, macaroni products and noodle products and to any standards of identity or quality promulgated hereunder.

SECTION 9. ORS 616.900 is amended to read:

616.900. (1) In addition to any other liability or penalty provided by law, and subject to section 1 of this 2001 Act, the Director of Agriculture may impose a civil penalty on a person for any violation of any provision of ORS 616.411 to 616.421 (1999 Edition).

(2) Any civil penalty under subsection (1) of this section shall be imposed in the manner provided by ORS 183.090.

(3) Notwithstanding ORS 183.090, the person to whom the notice is addressed shall have 10 days from the date of service of the notice in which to make written application for a hearing before the director.

(4) After public hearing, the director by rule shall adopt a schedule establishing the civil penalty that may be imposed under subsection (1) of this section. However, the civil penalty may not exceed $15,000 for each violation.

(5) A civil penalty imposed under subsection (1) of this section may be remitted or reduced upon such terms and conditions as the director considers proper and consistent with the public health and safety.

(6) In imposing a penalty pursuant to the schedule adopted pursuant to subsection (4) of this section, the director shall consider the following factors:

(a) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(b) Any prior violations of statutes, rules or orders pertaining to organic food.

(d) The impact on the consumers and handlers of the product.

(7) All penalties recovered under subsection (1) of this section shall be deposited in the General Fund.

SECTION 10. (1) ORS 616.406, 616.411, 616.416, 616.421 and 616.426 are repealed October 21, 2002.

(2) The repeal of ORS 616.411, 616.416, 616.421 and 616.426 by subsection (1) of this section does not affect the ability of the State Department of Agriculture to impose a civil penalty for a violation of a provision of ORS 616.411 to 616.421 or a rule adopted pursuant to ORS 616.426, that occurs prior to the repeal of ORS 616.411, 616.416, 616.421 and 616.426 by subsection (1) of this section.

(3) ORS 616.900 and section 1 of this 2001 Act are repealed January 2, 2004.

SECTION 11. (1) The amendments to ORS 616.250 and 616.900 by sections 4 and 9 of this 2001 Act become operative October 21, 2002.

(2) The amendments to ORS 616.205, 616.215, 616.256, 616.286, 616.320 and 616.780 by sections 2, 3 and 5 to 8 of this 2001 Act become operative January 1, 2004.

SECTION 12. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor June 5, 2001

Filed in the office of Secretary of State June 5, 2001

Effective date June 5, 2001

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