senate Bill S7789

Relates to the labeling of foods produced with certain types of fertilizer

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 09 / Jun / 2014
    • REFERRED TO AGRICULTURE

Summary

Relates to the labeling of foods produced with certain types of fertilizer.

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Bill Details

See Assembly Version of this Bill:
A9827A
Versions:
S7789
Legislative Cycle:
2013-2014
Current Committee:
Senate Agriculture
Law Section:
Agriculture and Markets Law
Laws Affected:
Add §214-o, Ag & Mkts L; add §391-t, Gen Bus L

Sponsor Memo

BILL NUMBER:S7789

TITLE OF BILL: An act to amend the agriculture and markets law and
the general business law, in relation to the labeling of foods
produced with certain types of fertilizer

PURPOSE:

This bill requires that foods produced with fertilizer containing
anaerobically digested human fecal matter be labeled.

SUMMARY OF PROVISIONS:

Section 1 amends the Agriculture and Markets Law by adding a new
section 214-l, which adds certain definitions and provides for food
labeling requirements for certain types of food produced with
fertilizer containing anaerobically digested human fecal matter.

Section 2 amends the General Business Law by adding a new section
391-o, which adds certain definitions and provides for food labeling
requirements for certain types of food produced with fertilizer
containing anaerobically digested human fecal matter.

Section 3 provides a severability clause.

Section 4 provides the effective date.

JUSTIFICATION:

Residents in Western New York have raised concerns about the use of
fertilizer containing anaerobically digested wastes, including human
fecal matter. While many local farms use anaerobic digesters to
produce energy from animal waste and then reuse the byproduct as
fertilizer, the use of human waste raises unique concerns that can be
addressed through labeling.

More complete information for consumers relating to the type of
fertilizer used can keep residents informed about the possibility of
health and safety concerns that can potentially be associated with the
product. As a result, this legislation will foster public awareness of
food products that were produced with this fertilizer.

LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None to the state.

EFFECTIVE DATE:

This act shall take effect twenty-four months after it shall have
become a law; provided, however, that effective immediately, the
Department of Agriculture and Markets shall adopt any rules and
regulations necessary to implement this act, including, but not
limited to, creating and maintaining a list, which shall be made


available to the public at no cost, of raw agricultural commodities
that are produced with commercial fertilizer composed of digestate
produced or partially produced from effluent that has gone through an
anaerobic digestion process

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7789

                            I N  S E N A T E

                              June 9, 2014
                               ___________

Introduced  by  Sen. MAZIARZ -- read twice and ordered printed, and when
  printed to be committed to the Committee on Agriculture

AN ACT to amend the agriculture and markets law and the general business
  law, in relation to the labeling of foods produced with certain  types
  of fertilizer

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The agriculture and markets law is amended by adding a  new
section 214-o to read as follows:
  S 214-O. THE LABELING OF FOODS PRODUCED WITH CERTAIN TYPES  OF  FERTI-
LIZERS.  1.  DEFINITIONS.  AS  USED  IN THIS SECTION THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "ANAEROBIC  DIGESTION"  MEANS  ANY  NATURAL  BIOLOGICAL  PROCESSES
INVOLVING  MICROORGANISMS  IN  THE ABSENCE OF OXYGEN FOR THE PURPOSES OF
BREAKING DOWN BIODEGRADABLE MATERIAL AND THE CREATION OF METHANE.
  (B) "COMMERCIAL FERTILIZER" SHALL MEAN ANY SUBSTANCES  CONTAINING  ONE
OR  MORE RECOGNIZED PLANT NUTRIENTS WHICH IS USED FOR ITS PLANT NUTRIENT
CONTENT, AND WHICH IS DESIGNED FOR USE  OR  CLAIMED  TO  HAVE  VALUE  IN
PROMOTING  PLANT  GROWTH,  EXCEPT  UNMANIPULATED  ANIMAL  AND  VEGETABLE
MANURES, AGRICULTURAL LIMING MATERIAL,  WOOD  ASHES,  GYPSUM  AND  OTHER
PRODUCTS EXEMPTED BY REGULATION OF THE COMMISSIONER.
  (C)  "DIGESTATE"  MEANS  ANY  LIQUID  OR SOLID THAT IS PRODUCED AS THE
RESULT OF THE PROCESS OF ANAEROBIC DIGESTION.
  (D) "EFFLUENT" MEANS ANY  GARBAGE,  REFUSE,  RAW  SEWAGE,  SEPTAGE  OR
SLUDGE  PRODUCED FROM A SEWAGE TREATMENT PLANT, WASTE TREATMENT PLANT OR
WATER SUPPLY TREATMENT PLANT THAT IS  KNOWN  TO  CONTAIN  EXCREMENTITOUS
WASTE  PRODUCTS  OR  OTHER  WASTES  OR WASHINGS FROM THE BODIES OF HUMAN
BEINGS.
  2. (A) ANY FOOD FOR HUMAN CONSUMPTION OFFERED FOR RETAIL SALE  IN  NEW
YORK IS MISBRANDED IF IT IS PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED
OF  DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE
THROUGH AN ANAEROBIC DIGESTION PROCESS AND THAT FACT IS NOT DISCLOSED AS
FOLLOWS:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15330-03-4

S. 7789                             2

  (I) IN THE CASE OF RAW AGRICULTURAL COMMODITY THAT IS  NOT  SEPARATELY
PACKAGED  OR  LABELED,  THE  WORDS  "PRODUCED WITH FERTILIZER CONTAINING
ANAEROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY  OTHER  DERIVATIVE  OF
THOSE  WORDS  SHALL BE PLACED ON THE CONTAINER USED FOR PACKAGING, HOLD-
ING,  AND/OR TRANSPORT IN A CLEAR AND CONSPICUOUS MANNER BY THE MANUFAC-
TURER, AND MAINTAINED BY THE DISTRIBUTOR, AND DISPLAYED IN A  CLEAR  AND
CONSPICUOUS  MANNER  ON  THE  RETAIL  STORE  SHELF  OR BIN IN WHICH SUCH
COMMODITY IS FOR SALE BY THE RETAILER;
  (II) IN THE CASE OF PROCESSED FOOD CONTAINING SOME  PRODUCTS  PRODUCED
WITH  COMMERCIAL  FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY
PRODUCED FROM EFFLUENT THAT HAS  GONE  THROUGH  AN  ANAEROBIC  DIGESTION
PROCESS,  THE MANUFACTURER MUST LABEL THE FOOD, IN A CLEAR AND CONSPICU-
OUS MANNER ON THE PACKAGE OF SUCH FOOD, WITH THE  WORDS  "PRODUCED  WITH
FERTILIZER  CONTAINING ANAEROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY
OTHER DERIVATIVE OF THOSE WORDS; AND
  (III) IN THE CASE OF ANY SEED OR SEED STOCK, THE MANUFACTURER OR OTHER
ENTITY RESPONSIBLE FOR PRODUCING THE SEED MUST LABEL THE  SEED  OR  SEED
STOCK CONTAINER, THE SALES RECEIPT, AND ANY OTHER REFERENCE TO IDENTIFI-
CATION, OWNERSHIP, OR POSSESSION, IN A CLEAR AND CONSPICUOUS MANNER WITH
THE  WORDS  "PRODUCED  WITH FERTILIZER CONTAINING ANAEROBICALLY DIGESTED
HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF THOSE WORDS.
  (B) THIS SUBDIVISION SHALL NOT BE  CONSTRUED  TO  REQUIRE  EITHER  THE
LISTING  OR  IDENTIFICATION  OF  ANY INGREDIENTS THAT WERE PRODUCED WITH
COMMERCIAL  FERTILIZER  COMPOSED  OF  DIGESTATE  PRODUCED  OR  PARTIALLY
PRODUCED  FROM  EFFLUENT  THAT  HAS  GONE THROUGH AN ANAEROBIC DIGESTION
PROCESS, NOR THAT THE PHRASE "PRODUCED WITH FERTILIZER CONTAINING  ANAE-
ROBICALLY  DIGESTED HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF THOSE
WORDS BE PLACED IMMEDIATELY PRECEDING ANY COMMON NAME OR PRIMARY PRODUCT
DESCRIPTOR OF A FOOD.
  (C) ANY PROCESSED FOOD OR RAW AGRICULTURAL  COMMODITY  THAT  WOULD  BE
SUBJECT TO THIS SECTION SOLELY BECAUSE IT INCLUDES ONE OR MORE MATERIALS
PRODUCED  WITH  COMMERCIAL  FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR
PARTIALLY PRODUCED FROM EFFLUENT  THAT  HAS  GONE  THOUGH  AN  ANAEROBIC
DIGESTION PROCESS IS NOT MISBRANDED PROVIDED THAT THESE MATERIALS IN THE
AGGREGATE DO NOT ACCOUNT FOR MORE THAN NINE-TENTHS OF ONE PERCENT OF THE
TOTAL WEIGHT OF THE PROCESSED FOOD OR RAW AGRICULTURAL COMMODITY.
  (D) THIS SUBDIVISION SHALL NOT APPLY TO ANY OF THE FOLLOWING:
  (I)  A RAW AGRICULTURAL COMMODITY OR FOOD THAT HAS BEEN GROWN, RAISED,
PRODUCED, OR DERIVED WITHOUT THE KNOWING AND INTENTIONAL USE  OF  FERTI-
LIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT
THAT  HAS  GONE  THROUGH AN ANAEROBIC DIGESTION PROCESS. INCLUDED WITHIN
THE EXCLUSION UNDER THIS PARAGRAPH, THE PERSON RESPONSIBLE FOR COMPLYING
WITH PARAGRAPH (A) OF THIS SUBDIVISION WITH RESPECT TO  A  RAW  AGRICUL-
TURAL  COMMODITY  OR FOOD, SHALL OBTAIN FROM WHOMEVER SOLD THE RAW AGRI-
CULTURAL COMMODITY OR FOOD TO THAT PERSON, A  WRITTEN  STATEMENT,  WHICH
SHALL BE INCLUDED ON AN INVOICE, THAT MAY BE IN AN ELECTRONIC FORM, THAT
THE  RAW  AGRICULTURAL  COMMODITY OR FOOD: (A) HAS NOT BEEN KNOWINGLY OR
INTENTIONALLY PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF  DIGESTATE
PRODUCED  OR  PARTIALLY  PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN
ANAEROBIC DIGESTION PROCESS; AND (B) HAS BEEN SEGREGATED FROM,  AND  HAS
NOT  BEEN KNOWINGLY OR INTENTIONALLY COMMINGLED WITH FOODS THAT MAY HAVE
BEEN PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE  PRODUCED
OR  PARTIALLY  PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC
DIGESTION PROCESS. IN PROVIDING SUCH STATEMENT, A PERSON MAY RELY  ON  A
WRITTEN  STATEMENT,  WHICH MAY BE IN AN ELECTRONIC FORM, FROM HIS OR HER
OWN SUPPLIER THAT CONTAINS SUCH AN AFFIRMATION;

S. 7789                             3

  (II) ANY PROCESSED FOOD THAT WOULD  BE  SUBJECT  TO  THIS  SUBDIVISION
SOLELY BECAUSE ONE OR MORE OF THE PROCESSING AIDS OR ENZYMES USED IN ITS
PRODUCTION  WERE  PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGES-
TATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE  THROUGH
AN ANAEROBIC DIGESTION PROCESS;
  (III)  ANY  ALCOHOLIC  BEVERAGE  THAT  IS SUBJECT TO REGULATION BY THE
ALCOHOLIC BEVERAGE CONTROL LAW;
  (IV) FOOD THAT HAS BEEN LAWFULLY CERTIFIED TO  BE  LABELED,  MARKETED,
AND  OFFERED FOR SALE AS "ORGANIC" PURSUANT TO THE FEDERAL ORGANIC FOODS
PRODUCTION ACT OF 1990, 7 U.S.C. 6501, ET SEQ., AND THE NATIONAL ORGANIC
PROGRAM REGULATIONS PROMULGATED PURSUANT THERETO BY  THE  UNITED  STATES
DEPARTMENT OF AGRICULTURE;
  (V)  FOOD THAT IS NOT PACKAGED FOR RETAIL SALE AND THAT EITHER: (A) IS
A PROCESSED FOOD PREPARED AND INTENDED FOR IMMEDIATE HUMAN  CONSUMPTION;
OR (B) IS SERVED, SOLD, OR OTHERWISE PROVIDED IN ANY RESTAURANT OR OTHER
FOOD  FACILITY THAT IS ENGAGED IN THE SALE OF FOOD PREPARED AND INTENDED
FOR IMMEDIATE CONSUMPTION; OR
  (VI) MEDICAL FOOD.
  (E) ANY PERSON, FIRM, CORPORATION, OR  OTHER  LEGAL  ENTITY  VIOLATING
THIS  SUBDIVISION SHALL BE SUBJECT TO THE PENALTIES FOR FALSE LABELS AND
MISREPRESENTATIONS AS SET FORTH IN SECTION THREE HUNDRED NINETY-TWO-B OF
THE GENERAL BUSINESS LAW, PROVIDED HOWEVER THAT A RETAILER SHALL NOT  BE
PENALIZED   FOR  THE  FAILURE  TO  LABEL  UNDER  SECTION  THREE  HUNDRED
NINETY-TWO-B OF THE GENERAL BUSINESS LAW UNLESS (I) THE RETAILER IS  THE
MANUFACTURER  OF  THE  FOOD, SEED OR SEED STOCK PRODUCED WITH COMMERCIAL
FERTILIZER COMPOSED OF DIGESTATE PRODUCED  OR  PARTIALLY  PRODUCED  FROM
EFFLUENT  THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION PROCESS AND SELLS
SUCH FOOD UNDER A BRAND IT OWNS OR (II) THE RETAILER'S FAILURE TO  LABEL
WAS  KNOWING  AND  WILLFUL.  IN  AN ACTION IN WHICH IT IS ALLEGED THAT A
RETAILER HAS VIOLATED THE PROVISIONS OF THIS  SECTION,  IT  SHALL  BE  A
DEFENSE THAT SUCH RETAILER RELIED ON (A) ANY DISCLOSURE CONCERNING FOODS
PRODUCED  WITH  COMMERCIAL  FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR
PARTIALLY PRODUCED FROM EFFLUENT THAT  HAS  GONE  THROUGH  AN  ANAEROBIC
DIGESTION  PROCESS  RECEIVED PURSUANT TO THIS SECTION OR (B) THE LACK OF
ANY DISCLOSURE.
  S 2. The general business law is amended by adding a new section 391-t
to read as follows:
  S 391-T. THE LABELING OF FOODS PRODUCED WITH CERTAIN TYPES  OF  FERTI-
LIZERS.  1.  DEFINITIONS.  AS  USED  IN THIS SECTION THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "ANAEROBIC  DIGESTION"  MEANS  ANY  NATURAL  BIOLOGICAL  PROCESSES
INVOLVING  MICROORGANISMS  IN  THE ABSENCE OF OXYGEN FOR THE PURPOSES OF
BREAKING DOWN BIODEGRADABLE MATERIAL AND THE CREATION OF METHANE.
  (B) "COMMERCIAL FERTILIZER" SHALL MEAN ANY SUBSTANCES  CONTAINING  ONE
OR  MORE RECOGNIZED PLANT NUTRIENTS WHICH IS USED FOR ITS PLANT NUTRIENT
CONTENT, AND WHICH IS DESIGNED FOR USE  OR  CLAIMED  TO  HAVE  VALUE  IN
PROMOTING  PLANT  GROWTH,  EXCEPT  UNMANIPULATED  ANIMAL  AND  VEGETABLE
MANURES, AGRICULTURAL LIMING MATERIAL,  WOOD  ASHES,  GYPSUM  AND  OTHER
PRODUCTS EXEMPTED BY REGULATION OF THE COMMISSIONER.
  (C)  "DIGESTATE"  MEANS  ANY  LIQUID  OR SOLID THAT IS PRODUCED AS THE
RESULT OF THE PROCESS OF ANAEROBIC DIGESTION.
  (D) "EFFLUENT" MEANS ANY  GARBAGE,  REFUSE,  RAW  SEWAGE,  SEPTAGE  OR
SLUDGE  PRODUCED FROM A SEWAGE TREATMENT PLANT, WASTE TREATMENT PLANT OR
WATER SUPPLY TREATMENT PLANT THAT IS KNOWN  TO  CONTAIN  EXCREMENTITIOUS
WASTE  PRODUCTS  OR  OTHER  WASTES  OR WASHINGS FROM THE BODIES OF HUMAN
BEINGS.

S. 7789                             4

  2. (A) ANY FOOD FOR HUMAN CONSUMPTION OFFERED FOR RETAIL SALE  IN  NEW
YORK IS MISBRANDED IF IT IS PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED
OF  DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE
THROUGH AN ANAEROBIC DIGESTION PROCESS AND THAT FACT IS NOT DISCLOSED AS
FOLLOWS:
  (I) IN THE CASE OF A RAW AGRICULTURAL COMMODITY THAT IS NOT SEPARATELY
PACKAGED  OR  LABELED,  THE  WORDS  "PRODUCED WITH FERTILIZER CONTAINING
ANAEROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY  OTHER  DERIVATIVE  OF
THOSE  WORDS SHALL BE PLACED  ON THE CONTAINER USED FOR PACKAGING, HOLD-
ING, AND/OR TRANSPORT IN A CLEAR AND CONSPICUOUS MANNER BY THE  MANUFAC-
TURER,  AND  MAINTAINED BY THE DISTRIBUTOR, AND DISPLAYED IN A CLEAR AND
CONSPICUOUS MANNER ON THE RETAIL  STORE  SHELF  OR  BIN  IN  WHICH  SUCH
COMMODITY IS FOR SALE BY THE RETAILER;
  (II)  IN  THE CASE OF PROCESSED FOOD CONTAINING SOME PRODUCTS PRODUCED
WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED  OR  PARTIALLY
PRODUCED  FROM EFFLUENT THAT HAS GONE THROUGH AN AEROBIC DIGESTION PROC-
ESS, THE MANUFACTURER MUST LABEL THE FOOD, IN A  CLEAR  AND  CONSPICUOUS
MANNER ON THE PACKAGE OF SUCH FOOD, WITH THE WORDS "PRODUCED WITH FERTI-
LIZER CONTAINING ANAEROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY OTHER
DERIVATIVE OF THOSE WORDS; AND
  (III) IN THE CASE OF ANY SEED OR SEED STOCK, THE MANUFACTURER OR OTHER
ENTITY  RESPONSIBLE  FOR  PRODUCING THE SEED MUST LABEL THE SEED OR SEED
STOCK CONTAINER, THE SALES RECEIPT, AND ANY OTHER REFERENCE TO IDENTIFI-
CATION, OWNERSHIP, OR POSSESSION, IN A CLEAR AND CONSPICUOUS MANNER WITH
THE WORDS "PRODUCED WITH FERTILIZER  CONTAINING  ANAEROBICALLY  DIGESTED
HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF THOSE WORDS.
  (B)  THIS  SUBDIVISION  SHALL NOT BE CONSTRUCTED TO REQUIRE EITHER THE
LISTING OR IDENTIFICATION OF ANY INGREDIENTS  THAT  WERE  PRODUCED  WITH
COMMERCIAL  FERTILIZER  COMPOSED  OF  DIGESTATE  PRODUCED  OR  PARTIALLY
PRODUCED FROM EFFLUENT THAT HAS  GONE  THROUGH  AN  ANAEROBIC  DIGESTION
PROCESS,  NOR THAT THE PHRASE "PRODUCED WITH FERTILIZER CONTAINING ANAE-
ROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF  THOSE
WORDS BE PLACED IMMEDIATELY PRECEDING ANY COMMON NAME OR PRIMARY PRODUCT
DESCRIPTOR OF A FOOD.
  (C)  ANY  PROCESSED  FOOD  OR RAW AGRICULTURAL COMMODITY THAT WOULD BE
SUBJECT TO THIS SECTION SOLELY BECAUSE IT INCLUDES ONE OR MORE MATERIALS
PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF  DIGESTATE  PRODUCED  OR
PARTIALLY  PRODUCED  FROM  EFFLUENT  THAT  HAS GONE THROUGH AN ANAEROBIC
DIGESTIVE PROCESS IS NOT MISBRANDED PROVIDED THAT THESE MATERIALS ON THE
AGGREGATE DO NOT ACCOUNT FOR MORE THAN NINE-TENTHS OF ONE PERCENT OF THE
TOTAL WEIGHT OF THE PROCESSED FOOD OR RAW AGRICULTURAL COMMODITY.
  (D) THIS SUBDIVISION SHALL NOT APPLY TO ANY OF THE FOLLOWING:
  (I) A RAW AGRICULTURAL COMMODITY OR FOOD THAT HAS BEEN GROWN,  RAISED,
PRODUCED,  OR  DERIVED WITHOUT THE KNOWING AND INTENTIONAL USE OF FERTI-
LIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT
THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION  PROCESS.  INCLUDED  WITHIN
THE EXCLUSION UNDER THIS PARAGRAPH, THE PERSON RESPONSIBLE FOR COMPLYING
WITH  PARAGRAPH  (A)  OF THIS SUBDIVISION WITH RESPECT TO A RAW AGRICUL-
TURAL COMMODITY OR FOOD, SHALL OBTAIN FROM WHOMEVER SOLD THE  RAW  AGRI-
CULTURAL  COMMODITY  OR  FOOD TO THAT PERSON, A WRITTEN STATEMENT, WHICH
SHALL BE INCLUDED ON AN INVOICE THAT MAY BE IN AN ELECTRONIC FORM,  THAT
THE  RAW  AGRICULTURAL  COMMODITY OR FOOD: (A) HAS NOT BEEN KNOWINGLY OR
INTENTIONALLY PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF  DIGESTATE
PRODUCED  OR  PARTIALLY  PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN
ANAEROBIC DIGESTION PROCESS; AND (B) HAS BEEN SEGREGATED FROM,  AND  HAS
NOT  BEEN KNOWINGLY OR INTENTIONALLY COMMINGLED WITH FOODS THAT MAY HAVE

S. 7789                             5

BEEN PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE  PRODUCED
OR  PARTIALLY  PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC
DIGESTION PROCESS. IN PROVIDING SUCH STATEMENT, A PERSON MAY RELY  ON  A
WRITTEN  STATEMENT,  WHICH MAY BE IN AN ELECTRONIC FORM, FROM HIS OR HER
OWN SUPPLIER THAT CONTAINS SUCH AN AFFIRMATION;
  (II) ANY PROCESSED FOOD THAT WOULD  BE  SUBJECT  TO  THIS  SUBDIVISION
SOLELY BECAUSE ONE OR MORE OF THE PROCESSING AIDS OR ENZYMES USED IN ITS
PRODUCTION  WERE  PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGES-
TATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE  THROUGH
AN ANAEROBIC DIGESTION PROCESS;
  (III)  ANY  ALCOHOLIC  BEVERAGE  THAT  IS SUBJECT TO REGULATION BY THE
ALCOHOLIC BEVERAGE CONTROL LAW;
  (IV) FOOD THAT HAS BEEN LAWFULLY CERTIFIED TO  BE  LABELED,  MARKETED,
AND  OFFERED FOR SALE AS "ORGANIC" PURSUANT TO THE FEDERAL ORGANIC FOODS
PRODUCTION ACT OF 1990, 7 U.S.C. 6501, ET SEQ., AND THE NATIONAL ORGANIC
PROGRAM REGULATIONS PROMULGATED PURSUANT THERETO BY  THE  UNITED  STATES
DEPARTMENT OF AGRICULTURE;
  (V)  FOOD THAT IS NOT PACKAGED FOR RETAIL SALE AND THAT EITHER: (A) IS
A PROCESSED FOOD PREPARED AND INTENDED FOR IMMEDIATE HUMAN  CONSUMPTION;
OR (B) IS SERVED, SOLD, OR OTHERWISE PROVIDED IN ANY RESTAURANT OR OTHER
FOOD  FACILITY THAT IS ENGAGED IN THE SALE OF FOOD PREPARED AND INTENDED
FOR IMMEDIATE CONSUMPTION; OR
  (VI) MEDICAL FOOD.
  (E) ANY PERSON, FIRM, CORPORATION, OR  OTHER  LEGAL  ENTITY  VIOLATING
THIS  SUBDIVISION SHALL BE SUBJECT TO THE PENALTIES FOR FALSE LABELS AND
MISREPRESENTATIONS AS SET FORTH IN SECTION THREE HUNDRED NINETY-TWO-B OF
THIS ARTICLE, PROVIDED HOWEVER THAT A RETAILER SHALL  NOT  BE  PENALIZED
FOR  THE  FAILURE  TO  LABEL UNDER SECTION THREE HUNDRED NINETY-TWO-B OF
THIS ARTICLE UNLESS (I) THE RETAILER IS THE MANUFACTURER  OF  THE  FOOD,
SEED  OR  SEED  STOCK  PRODUCED  WITH  COMMERCIAL FERTILIZER COMPOSED OF
DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM  EFFLUENT  THAT  HAS  GONE
THROUGH AN ANAEROBIC DIGESTION PROCESS AND SELLS SUCH FOOD UNDER A BRAND
IT OWNS OR (II) THE RETAILER'S FAILURE TO LABEL WAS KNOWING AND WILLFUL.
IN  AN  ACTION  IN  WHICH IT IS ALLEGED THAT A RETAILER HAS VIOLATED THE
PROVISIONS OF THIS SECTION, IT SHALL BE A  DEFENSE  THAT  SUCH  RETAILER
RELIED  ON  (A) ANY DISCLOSURE CONCERNING FOODS PRODUCED WITH COMMERCIAL
FERTILIZER COMPOSED OF DIGESTATE PRODUCED  OR  PARTIALLY  PRODUCED  FROM
EFFLUENT  THAT  HAS GONE THROUGH AN ANAEROBIC DIGESTION PROCESS RECEIVED
PURSUANT TO THIS SECTION OR (B) THE LACK OF ANY DISCLOSURE.
  S 3. Severability clause. If any provision of this act or its applica-
tion to any person, legal entity, or circumstance is held  invalid,  the
remainder  of  the  act  or  the  application  of the provision to other
persons, legal entity or circumstances shall not be affected.
  S 4. This act shall take effect twenty-four months after it shall have
become a law; provided, however, that effective immediately, the depart-
ment of agriculture and markets shall adopt any  rules  and  regulations
necessary to implement this act, including, but not limited to, creating
and  maintaining  a list, which shall be made available to the public at
no cost, of raw agricultural commodities that are produced with  commer-
cial  fertilizer  composed  of  digestate produced or partially produced
from effluent that has gone through an anaerobic digestion process.

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