s 1392. Intent.

The intent of this article is to facilitate the sale of agricultural products from producers and certified producers within the state directly to consumers while maintaining sufficient regulatory control to ensure that the agricultural products are of acceptable quality and that the selling activities are conducted honestly and fairly.

Note: Authority cited: Sections 14, 407, 42682, 42684, 58101, 58101.5, 58102, 58103 and 58104, Food and Agricultural Code. Reference: Sections 42941, 58101, 58101.5, 58102, 58103, and 58104, Food and Agricultural Code.

History

1. New article 6.5 (sections 1392-1392.11) filed 3-31-77; effective thirtieth day thereafter (Register 77, No. 14).

2. Amendment filed 3-30-79; effective thirtieth day thereafter (Register 79, No. 13).

3. Amendment of section filed 7-26-91; operative 7-26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

s 1392.1. Direct Marketing Authorized.

(a) Notwithstanding other provisions of this Group, this article authorizes producers or certified producers of certified or noncertifiable agricultural products to sell their products, as defined in this article, directly to consumers, subject to the provisions of this article.

(b) A certified producer may sell agricultural products, which he/she has produced, at a certified farmers' market.

(c) A producer may only sell noncertifiable agricultural products which he/she has produced, at a certified farmers' market, or agricultural products which he/she has produced, at or near the point of production.

(d) Fresh fruits, nuts, and vegetables may be sold directly to consumers exempt from size, standard pack, container, and labeling requirements (except labeling required by section 1392.4(f)), only by:

(1) The certified producer of the agricultural products at a stand at a certified farmers' market; or

(2) The producer of the agricultural products at a retail stand located at or near the point of production.

(e) All fresh fruits, nuts, and vegetables sold pursuant to this article shall comply with the regulations of the California Code of Regulations, title 3, subchapter 4, beginning with section 1359, governing maturity and quality.

(f) Excluding fresh fruits, nuts, and vegetables, agricultural products, as defined in this article, which are sold or offered for sale at a certified farmers' market or at or near the point of production, must comply with all applicable laws and regulations pertaining to quality and labeling.

(g) This article does not supersede the provisions of federal marketing orders, state marketing orders, state laws and regulations enforced by any state agency, or any other local health and safety laws, regulations, or ordinances.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 58101.5, 58102 and 58103, Food and Agricultural Code. Reference: Sections 42941, 58101, 58101.5, 58102, 58103 and 58104, Food and Agricultural Code.

History

1. Amendment and numbering of undesignated introductory paragraph as subsection (a), repealer of remaining paragraphs with new subsections (b)-(e) and NOTE filed 7-26-91; operative 7- 26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

Unless the context otherwise requires, the following definitions govern the construction of the language in this article.

(a) Certified Farmers' Market. A location approved by the county agricultural commissioner of that county where agricultural products are sold by producers or certified producers directly to consumers. A certified farmers' market may be operated by one or more certified producers, by a nonprofit organization, or by a local government agency.

(b) Certified Farmers' Market Certificate. A certificate issued by the county agricultural commissioner authorizing the location where agricultural products are sold by the producers directly to consumers. The certificate is valid only when bearing the original signatures of the county agricultural commissioner and the authorized representative of the certified farmers' market.

(c) Land Which the Producer or Certified Producer Controls. Land that the producer or certified producer farms and owns, rents, leases, or sharecrops.

(d) Producer. A person or entity who produces agricultural products by practice of the agricultural arts upon land which the person or entity controls.

(e) Certified Producer. A producer authorized by the county agricultural commissioner to sell certified agricultural products, produced by practice of the agricultural arts upon land which the certified producer controls, directly to consumers at a certified farmers' market.

(f) Certified Producer's Certificate. A certificate issued by the county agricultural commissioner authorizing the transportation and sale of certified agricultural products pursuant to this article.

(g) Consumer. A person who purchases and receives agricultural products at or near the point of production or at a certified farmers' market. It excludes a person who purchases fresh fruits, nuts, and vegetables for commercial resale unless such products comply with all applicable size, standard pack, containers, and labeling requirements.

(h) Direct Marketing. The sale:

(1) At a certified farmers' market of agricultural products by a certified producer to a consumer; or

(2) At a certified farmers' market of noncertifiable agricultural products by a producer to a consumer; or

(3) At or near the point of production of agricultural products by a producer to a consumer.

(i) Immediate Family. Parents, children, grandparents, or grandchildren of the certified producer or a family member regularly residing in the certified producer's household.

(j) Employee. Any person employed by a certified producer at a regular salary or wage, on either a full or part time basis. It does not include any person who is reselling or whose compensation is primarily based on a commission of sales.

Notwithstanding the above, an employee of an agricultural cooperative organized under the laws of California may sell the agricultural products of one of its members in accordance with the provisions of this article.

(k) Agricultural Products. Agricultural products include all certified and noncertifiable agricultural products as defined in section 1392.2(1) and section 1392.2(m).

( l) Certified Agricultural Products. Agricultural products, which are certified under the jurisdiction of the county agricultural commissioner relative to inspection and verification of compliance with the provisions of this article, include fresh fruits, nuts, vegetables, shell eggs, honey, flowers, and nursery stock.

(m) Noncertifiable Agricultural Products.

Noncertifiable agricultural products include all certified agricultural products that have been processed, those products other than certified agricultural products noted in ( l) above from any tree, vine or plant and their flowers (including processed products), livestock (including rabbits) and livestock products, and fish and shellfish produced under controlled conditions in waters or ponds located in California.

(n) Nonprofit Organization. An organization which qualifies for nonprofit status for California income tax purposes.

(o) Market Manager. A person or persons empowered to implement the rules, regulations, policies, and directives of the governing body of a certified farmers' market.

(p) Market Rules. A set of written rules or regulations approved by each certified farmers' market. The rules and regulations may be more stringent than established state regulations, provided they do not violate or conflict with any state law or regulation governing their activities.

(q) Notice and Hearing Process. A process initiated at the discretion of a county agricultural commissioner after alleged violation(s) of the provisions of this article has occurred.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 58101.5, 58102 and 58103, Food and Agricultural Code. Reference: Sections 42941, 58101, 58101.5, 58102, 58103 and 58104, Food and Agricultural Code.

History

1. Amendment of subsection (a) filed 3-30-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment of undesignated paragraph and subsection (a), amendment and renumbering of subsections (k) to (c), (b) to (d), (c) to (e), (i) to (f), (d) to (g), (e) to (h), (g) to (i), (f) to (j), (h) to (m) and (j) to (n), with new subsections (b), (k), ( l), (o), (p) and (q) filed 7-26-91; operative 7-26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

s 1392.3. Where Direct Marketing Permitted.

History

1. Repealer filed 7-26-91; operative 7-26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

s 1392.4. Conditions of Direct Marketing.

(a) Except as provided in subsection (g) below, certified producers may sell or offer to sell only their own agricultural products to consumers at a certified farmers' market. The certified producer's immediate family or employee(s) may also act for and sell the certified producer's agricultural products.

(b) All agricultural products, when sold or offered for sale at a certified farmers' market or at or near the point of production, shall comply with all applicable requirements of articles 1 (beginning with section 27500), 2, 3, 4, 5, 6, 7, 11, 13, and 15 of chapter 4 (California Uniform Retail Food Facilities Law), division 22, of the California Health and Safety Code, and chapters 1 (beginning with section 26000), 2, 4, 5, and 8 (California Sherman Food, Drug, and Cosmetic Law), division 21, of the California Health and Safety Code.

(c) Only agricultural products may be sold or offered for sale at a certified farmers' market. The sale of nonagricultural products shall not be permitted in the area designated as a certified farmers' market.

(d) The certified producer's embossed photocopy certificate shall accompany the certified agricultural products during transportation and shall be conspicuously posted at the point of sale.

(e) When any agricultural products are sold by weight, the type of scale used shall be approved by the Department of Food and Agriculture, and shall be tested and sealed for use by the county sealer-director of weights and measures.

(f) All prepackaged closed consumer containers of agricultural products shall be labeled with the name, address, and zip code of the producer and a declaration of identity and net quantity of the commodity in the package.

(g) A certified farmers' market may allow, or prohibit, a certified producer or his/her employee to sell at that market the agricultural products on behalf of other certified producers. If such practice is allowed, it shall be limited to a maximum of two other such certified producers, provided the following provisions are specified in the certified farmers' market's rules and regulations.

(1) The agricultural products to be sold or offered for sale shall be separated and identifiable by each certified producer's valid certificate at the point of sale.

(2) The certified producer selling for such other certified producers must also sell or offer for sale agricultural products which the seller himself/herself has produced.

(3) Prior to sale, the certified producer selling on behalf of other certified producers shall obtain and provide the market manager with written verification that the certified producer has authority to do so.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 47000, 47002, 47003 and 47004, Food and Agricultural Code. Reference: Section 42941, Food and Agricultural Code.

History

1. Amendment of subsection (a) filed 3-30-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment of subsection (a) filed 4-4-79; effective thirtieth day thereafter (Register 79, No. 13).

3. Amendment of subsection (a) filed 2-3-82; effective thirtieth day thereafter (Register 82, No. 6).

4. Amendment of subsection (a), amendment and renumbering of subsections (b) to (e), (c) to (f), with new subsections (b), (c), (d) and (g) filed 7-26-91; operative 7-26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

5. Amendment of subsections (g)-(g)(3) and amendment of Note filed 1-30-97; operative 3-1-97 (Register 97, No. 5).

s 1392.5. Producer Certification Procedures.

(a) A producer may become certified by applying to the agricultural commissioner of the county where the producer's farm is located. A producer who farms in more than one county must be certified in each county where he/she produces certifiable agricultural products for sale at a certified farmers' market.

(b) The certificate and application shall be on a form authorized by the director and include an agreement signed by the applicant that the applicant will comply with the terms of this article.

(c) Any producer shall provide, upon request by an enforcing officer or market manager, certificates, documentation, information, or any other identification that may be reasonably required to show that the conditions of this article are being met.

(d) The county agricultural commissioner shall issue only one original certificate, which bears the signatures of the agricultural commissioner and the certified producer, and the name of each destination county where the certified producer will be selling. The original certificate shall be maintained in the issuing county agricultural commissioner's office.

(e) The county agricultural commissioner shall issue an embossed photocopy of the original certificate to the certified producer, which will serve as the valid certified producer's certificate. Certified producers who intend to sell at more than one certified farmers' market must obtain the necessary number of embossed photocopies of the original certificate to comply with the provisions of this article.

(f) The issuing county agricultural commissioner shall send a photocopy of the original certificate to each destination county listed on the certified producer's certificate.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 58101.5, 58102 and 58103, Food and Agricultural Code. Reference: Sections 42941, 58101, 58101.5, 58102, 58103 and 58104, Food and Agricultural Code.

History

1. Amendment of heading, amendment and numbering of first three undesignated paragraphs as subsections (a)-(c), with repealer of remaining undesignated paragraphs, and new subsections (d)-(f) and NOTE filed 7-26-91; operative 7-26- 91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

s 1392.6. Certification Requirements of a Certified Farmers' Market.

(a) A county agricultural commissioner may issue a certified farmers' market certificate, which specifies a location where agricultural products may be sold or offered for sale. The certificate shall indicate that the marketplace is a certified farmers' market.

(b) Application shall be made by the proposed operator(s) of a certified farmers' market and shall include a signed agreement by the operator(s) to comply with the terms of this article. The application and certificate shall be on a form authorized by the director.

(c) The county agricultural commissioner shall not issue a certificate for a certified farmers' market when notified that a permit for the operation of such market has been denied by an agency of local government.

(d) The governing body of a certified farmers' market operation for or by more than one certified producer shall promulgate a set of market rules and regulations which specify procedural criteria pertaining to:

(1) Admission of any producer to the market(s).

(2) Admission of any agricultural products to the market(s).

(3) Removal of any producer from the market(s).

(4) Allowance of a certified producer selling on behalf of another certified producer as provided in Section 1392.4.

(e) The governing body of a certified farmers' market has authority to establish specific rules and regulations for any market(s) under its control which regulate the:

(1) Type and number of producers and certified producers admitted.

(2) Type and number of certified and noncertifiable products admitted.

(3) Methods of selling certified and noncertifiable agricultural products.

(f) The certified farmers' market's rules and regulations shall contain a clause, which states that the governing body and its designated agents shall implement and enforce all rules and regulations pertaining to the operation of a certified farmers' market in a fair and equitable manner.

(g) A current copy of the certified farmers' market's rules and regulations shall be sent to the Department of Food and Agriculture, Fruit and Vegetable Quality Control -Standardization, and to the agricultural commissioner of the county in which the certified farmers' market is located.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 47000, 47002 and 47003, Food and Agricultural Code. Reference: Section 42941, Food and Agricultural Code.

History

1. Amendment of heading, repealer of undesignated 1st, 3rd and 4th paragraphs, amendment and numbering of undesignated second paragraph as subsections (b) and (c), and new subsections (a), (d)-(g) and NOTE filed 7-26-91; operative 7- 26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

2. New subsection (d)(4) and amendment of Note filed 1-30-97; operative 3-1-97(Register 97, No. 5).

s 1392.7. Certificates Issued.

(a) A county agricultural commissioner shall issue a certified producer's certificate upon review of application and determination that the applicant meets the requirements of a certified producer. When issuing the certified producer's certificate, the county agricultural commissioner should:

(1) Consider seasonal production and varieties of the products when listing the products.

(2) Insofar as practicable, include an on-site inspection of the land controlled by the producer.

(b) A county agricultural commissioner shall issue a certified farmers' market certificate upon review of application and determination that the applicant meets the requirements to operate a certified farmers' market.

(c) A certified producer's certificate shall be valid for not more than 12 months from the date of issue.

(d) A certified farmers' market certificate shall be valid for 12 months from the date of issue.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 58101.5, 58102 and 58103, Food and Agricultural Code. Reference: Sections 42941, 58101, 58101.5, 58102, 58103 and 58104, Food and Agricultural Code.

History

1. Amendment of subsection (a), amendment and renumbering of subsection (b) to(c), and new subsections (b) and (d), and NOTE filed 7-26-91; operative 7-26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

s 1392.8. Fees.

The county agricultural commissioner may charge a fee for issuing, modifying, verifying, or renewing any certificate, including embossed photocopies, as set by the board of supervisors of that county.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 58101.5, 58102 and 58103, Food and Agricultural Code. Reference: Sections 42941, 58101, 58101.5, 58102, 58103 and 58104, Food and Agricultural Code.

History

1. Amendment of heading and section with new NOTE filed 7- 26-91; operative 7- 26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

s 1392.9. Violations.

History

1. Repealer filed 7-26-91; operative 7-26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

s 1392.10. Penalties.

(a) Any county agricultural commissioner may, at any time, initiate a notice and hearing process to determine whether a violation of these provisions has occurred. The hearing process may review the actions of:

(1) The certificate holder; or

(2) A family member, employee, or another certified producer acting on behalf of the certificate holder; or

(3) Any other person whose actions may have resulted in the violation.

(b) The notice of hearing shall be on a form approved by the director and contain:

(1) Specific provisions violated; and

(2) A warning to cease such violations; and

(3) A hearing date to determine if the certificate(s) involved in the violations or participation privileges should be revoked.

(c) The county agricultural commissioner, upon determination that a violation has been made in accordance with (a), above, may:

(1) Suspend and/or refuse, for a period of up to 18 months, to issue a certificate to the violator; and/or

(2) Suspend, for a period of up to 18 months, the privilege of participation, under the provisions of this article, of any person whose action resulted in the violation.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 58101.5, 58102 and 58103, Food and Agricultural Code. Reference: Sections 42941, 58101, 58101.5, 58102, 58103 and 58104, Food and Agricultural Code.

History

1. Repealer with new subsections (a)-(c) and NOTE filed 7- 26-91; operative 7- 26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).

s 1392.11. Appeals.

Any person may appeal to the director for a hearing if aggrieved by any one of the following actions or decisions:

(a) Denial of any certificate.

(b) Suspension of any certificate.

(c) Suspension of participation privileges.

(d) Adoption of more stringent rules or regulations pertaining to the operation of certified farmers' markets.

In all cases, the appeal must be submitted to the director in writing within 30 days of the date the action or decision was made. The director's proceeding shall, insofar as practicable, comply with the provisions of the Administrative Procedure Act (Government Code, Section 11500, et seq.), except that a department hearing officer may be used.

Note: Authority cited: Sections 14, 407, 42681, 42682, 42684, 58101.5 and 58104, Food and Agricultural Code. Reference: Sections 42941, 58101, 58101.5, 58102, 58103 and 58104, Food and Agricultural Code.

History

1. Repealer with new undesignated introductory paragraph, subsections (a)-(d), and undesignated final paragraph and NOTE filed 7-26-91; operative 7-26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).