71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 969
A-Engrossed
Senate Bill 312
Ordered by the Senate April 3
Including Senate Amendments dated April 3
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor John A. Kitzhaber,
M.D., for State Department of Agriculture)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
{ - Authorizes Director of Agriculture to adopt rules for
establishment, administration and enforcement of organic food
certification program. Authorizes State Department of Agriculture
to charge fees for certification program services. - } { +
Provides for transition to United States Department of
Agriculture National Organic Program.
Declares emergency, effective on passage. + }
A BILL FOR AN ACT
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 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
(c) Articles used for components of any such article.
(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
(c) A color additive.
(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.
(c) Exemptions as to small packages shall be established by
rules promulgated by the State Department of Agriculture.
(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.
(c) The immediacy and extent to which the violation threatens
the public health or safety.
(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. + }
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