Bill Text: NY A09827 | 2013-2014 | General Assembly | Amended
Bill Title: Relates to the labeling of foods produced with certain types of fertilizer.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-05-28 - print number 9827a [A09827 Detail]
Download: New_York-2013-A09827-Amended.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 9827--A I N A S S E M B L Y May 27, 2014 ___________ Introduced by M. of A. CERETTO -- read once and referred to the Commit- tee on Consumer Affairs and Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee 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: 1 Section 1. The agriculture and markets law is amended by adding a new 2 section 214-o to read as follows: 3 S 214-O. THE LABELING OF FOODS PRODUCED WITH CERTAIN TYPES OF FERTI- 4 LIZERS. 1. DEFINITIONS. AS USED IN THIS SECTION THE FOLLOWING TERMS 5 SHALL HAVE THE FOLLOWING MEANINGS: 6 (A) "ANAEROBIC DIGESTION" MEANS ANY NATURAL BIOLOGICAL PROCESSES 7 INVOLVING MICROORGANISMS IN THE ABSENCE OF OXYGEN FOR THE PURPOSES OF 8 BREAKING DOWN BIODEGRADABLE MATERIAL AND THE CREATION OF METHANE. 9 (B) "COMMERCIAL FERTILIZER" SHALL MEAN ANY SUBSTANCES CONTAINING ONE 10 OR MORE RECOGNIZED PLANT NUTRIENTS WHICH IS USED FOR ITS PLANT NUTRIENT 11 CONTENT, AND WHICH IS DESIGNED FOR USE OR CLAIMED TO HAVE VALUE IN 12 PROMOTING PLANT GROWTH, EXCEPT UNMANIPULATED ANIMAL AND VEGETABLE 13 MANURES, AGRICULTURAL LIMING MATERIAL, WOOD ASHES, GYPSUM AND OTHER 14 PRODUCTS EXEMPTED BY REGULATION OF THE COMMISSIONER. 15 (C) "DIGESTATE" MEANS ANY LIQUID OR SOLID THAT IS PRODUCED AS THE 16 RESULT OF THE PROCESS OF ANAEROBIC DIGESTION. 17 (D) "EFFLUENT" MEANS ANY GARBAGE, REFUSE, RAW SEWAGE, SEPTAGE OR 18 SLUDGE PRODUCED FROM A SEWAGE TREATMENT PLANT, WASTE TREATMENT PLANT OR 19 WATER SUPPLY TREATMENT PLANT THAT IS KNOWN TO CONTAIN EXCREMENTITOUS 20 WASTE PRODUCTS OR OTHER WASTES OR WASHINGS FROM THE BODIES OF HUMAN 21 BEINGS. 22 2. (A) ANY FOOD FOR HUMAN CONSUMPTION OFFERED FOR RETAIL SALE IN NEW 23 YORK IS MISBRANDED IF IT IS PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED 24 OF DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15330-04-4 A. 9827--A 2 1 THROUGH AN ANAEROBIC DIGESTION PROCESS AND THAT FACT IS NOT DISCLOSED AS 2 FOLLOWS: 3 (I) IN THE CASE OF RAW AGRICULTURAL COMMODITY THAT IS NOT SEPARATELY 4 PACKAGED OR LABELED, THE WORDS "PRODUCED WITH FERTILIZER CONTAINING 5 ANAEROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF 6 THOSE WORDS SHALL BE PLACED ON THE CONTAINER USED FOR PACKAGING, HOLD- 7 ING, AND/OR TRANSPORT IN A CLEAR AND CONSPICUOUS MANNER BY THE MANUFAC- 8 TURER, AND MAINTAINED BY THE DISTRIBUTOR, AND DISPLAYED IN A CLEAR AND 9 CONSPICUOUS MANNER ON THE RETAIL STORE SHELF OR BIN IN WHICH SUCH 10 COMMODITY IS FOR SALE BY THE RETAILER; 11 (II) IN THE CASE OF PROCESSED FOOD CONTAINING SOME PRODUCTS PRODUCED 12 WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY 13 PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION 14 PROCESS, THE MANUFACTURER MUST LABEL THE FOOD, IN A CLEAR AND CONSPICU- 15 OUS MANNER ON THE PACKAGE OF SUCH FOOD, WITH THE WORDS "PRODUCED WITH 16 FERTILIZER CONTAINING ANAEROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY 17 OTHER DERIVATIVE OF THOSE WORDS; AND 18 (III) IN THE CASE OF ANY SEED OR SEED STOCK, THE MANUFACTURER OR OTHER 19 ENTITY RESPONSIBLE FOR PRODUCING THE SEED MUST LABEL THE SEED OR SEED 20 STOCK CONTAINER, THE SALES RECEIPT, AND ANY OTHER REFERENCE TO IDENTIFI- 21 CATION, OWNERSHIP, OR POSSESSION, IN A CLEAR AND CONSPICUOUS MANNER WITH 22 THE WORDS "PRODUCED WITH FERTILIZER CONTAINING ANAEROBICALLY DIGESTED 23 HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF THOSE WORDS. 24 (B) THIS SUBDIVISION SHALL NOT BE CONSTRUED TO REQUIRE EITHER THE 25 LISTING OR IDENTIFICATION OF ANY INGREDIENTS THAT WERE PRODUCED WITH 26 COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY 27 PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION 28 PROCESS, NOR THAT THE PHRASE "PRODUCED WITH FERTILIZER CONTAINING ANAE- 29 ROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF THOSE 30 WORDS BE PLACED IMMEDIATELY PRECEDING ANY COMMON NAME OR PRIMARY PRODUCT 31 DESCRIPTOR OF A FOOD. 32 (C) ANY PROCESSED FOOD OR RAW AGRICULTURAL COMMODITY THAT WOULD BE 33 SUBJECT TO THIS SECTION SOLELY BECAUSE IT INCLUDES ONE OR MORE MATERIALS 34 PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR 35 PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THOUGH AN ANAEROBIC 36 DIGESTION PROCESS IS NOT MISBRANDED PROVIDED THAT THESE MATERIALS IN THE 37 AGGREGATE DO NOT ACCOUNT FOR MORE THAN NINE-TENTHS OF ONE PERCENT OF THE 38 TOTAL WEIGHT OF THE PROCESSED FOOD OR RAW AGRICULTURAL COMMODITY. 39 (D) THIS SUBDIVISION SHALL NOT APPLY TO ANY OF THE FOLLOWING: 40 (I) A RAW AGRICULTURAL COMMODITY OR FOOD THAT HAS BEEN GROWN, RAISED, 41 PRODUCED, OR DERIVED WITHOUT THE KNOWING AND INTENTIONAL USE OF FERTI- 42 LIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT 43 THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION PROCESS. INCLUDED WITHIN 44 THE EXCLUSION UNDER THIS PARAGRAPH, THE PERSON RESPONSIBLE FOR COMPLYING 45 WITH PARAGRAPH (A) OF THIS SUBDIVISION WITH RESPECT TO A RAW AGRICUL- 46 TURAL COMMODITY OR FOOD, SHALL OBTAIN FROM WHOMEVER SOLD THE RAW AGRI- 47 CULTURAL COMMODITY OR FOOD TO THAT PERSON, A WRITTEN STATEMENT, WHICH 48 SHALL BE INCLUDED ON AN INVOICE, THAT MAY BE IN AN ELECTRONIC FORM, THAT 49 THE RAW AGRICULTURAL COMMODITY OR FOOD: (A) HAS NOT BEEN KNOWINGLY OR 50 INTENTIONALLY PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE 51 PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN 52 ANAEROBIC DIGESTION PROCESS; AND (B) HAS BEEN SEGREGATED FROM, AND HAS 53 NOT BEEN KNOWINGLY OR INTENTIONALLY COMMINGLED WITH FOODS THAT MAY HAVE 54 BEEN PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED 55 OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC 56 DIGESTION PROCESS. IN PROVIDING SUCH STATEMENT, A PERSON MAY RELY ON A A. 9827--A 3 1 WRITTEN STATEMENT, WHICH MAY BE IN AN ELECTRONIC FORM, FROM HIS OR HER 2 OWN SUPPLIER THAT CONTAINS SUCH AN AFFIRMATION; 3 (II) ANY PROCESSED FOOD THAT WOULD BE SUBJECT TO THIS SUBDIVISION 4 SOLELY BECAUSE ONE OR MORE OF THE PROCESSING AIDS OR ENZYMES USED IN ITS 5 PRODUCTION WERE PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGES- 6 TATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH 7 AN ANAEROBIC DIGESTION PROCESS; 8 (III) ANY ALCOHOLIC BEVERAGE THAT IS SUBJECT TO REGULATION BY THE 9 ALCOHOLIC BEVERAGE CONTROL LAW; 10 (IV) FOOD THAT HAS BEEN LAWFULLY CERTIFIED TO BE LABELED, MARKETED, 11 AND OFFERED FOR SALE AS "ORGANIC" PURSUANT TO THE FEDERAL ORGANIC FOODS 12 PRODUCTION ACT OF 1990, 7 U.S.C. 6501, ET SEQ., AND THE NATIONAL ORGANIC 13 PROGRAM REGULATIONS PROMULGATED PURSUANT THERETO BY THE UNITED STATES 14 DEPARTMENT OF AGRICULTURE; 15 (V) FOOD THAT IS NOT PACKAGED FOR RETAIL SALE AND THAT EITHER: (A) IS 16 A PROCESSED FOOD PREPARED AND INTENDED FOR IMMEDIATE HUMAN CONSUMPTION; 17 OR (B) IS SERVED, SOLD, OR OTHERWISE PROVIDED IN ANY RESTAURANT OR OTHER 18 FOOD FACILITY THAT IS ENGAGED IN THE SALE OF FOOD PREPARED AND INTENDED 19 FOR IMMEDIATE CONSUMPTION; OR 20 (VI) MEDICAL FOOD. 21 (E) ANY PERSON, FIRM, CORPORATION, OR OTHER LEGAL ENTITY VIOLATING 22 THIS SUBDIVISION SHALL BE SUBJECT TO THE PENALTIES FOR FALSE LABELS AND 23 MISREPRESENTATIONS AS SET FORTH IN SECTION THREE HUNDRED NINETY-TWO-B OF 24 THE GENERAL BUSINESS LAW, PROVIDED HOWEVER THAT A RETAILER SHALL NOT BE 25 PENALIZED FOR THE FAILURE TO LABEL UNDER SECTION THREE HUNDRED 26 NINETY-TWO-B OF THE GENERAL BUSINESS LAW UNLESS (I) THE RETAILER IS THE 27 MANUFACTURER OF THE FOOD, SEED OR SEED STOCK PRODUCED WITH COMMERCIAL 28 FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM 29 EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION PROCESS AND SELLS 30 SUCH FOOD UNDER A BRAND IT OWNS OR (II) THE RETAILER'S FAILURE TO LABEL 31 WAS KNOWING AND WILLFUL. IN AN ACTION IN WHICH IT IS ALLEGED THAT A 32 RETAILER HAS VIOLATED THE PROVISIONS OF THIS SECTION, IT SHALL BE A 33 DEFENSE THAT SUCH RETAILER RELIED ON (A) ANY DISCLOSURE CONCERNING FOODS 34 PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR 35 PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC 36 DIGESTION PROCESS RECEIVED PURSUANT TO THIS SECTION OR (B) THE LACK OF 37 ANY DISCLOSURE. 38 S 2. The general business law is amended by adding a new section 391-t 39 to read as follows: 40 S 391-T. THE LABELING OF FOODS PRODUCED WITH CERTAIN TYPES OF FERTI- 41 LIZERS. 1. DEFINITIONS. AS USED IN THIS SECTION THE FOLLOWING TERMS 42 SHALL HAVE THE FOLLOWING MEANINGS: 43 (A) "ANAEROBIC DIGESTION" MEANS ANY NATURAL BIOLOGICAL PROCESSES 44 INVOLVING MICROORGANISMS IN THE ABSENCE OF OXYGEN FOR THE PURPOSES OF 45 BREAKING DOWN BIODEGRADABLE MATERIAL AND THE CREATION OF METHANE. 46 (B) "COMMERCIAL FERTILIZER" SHALL MEAN ANY SUBSTANCES CONTAINING ONE 47 OR MORE RECOGNIZED PLANT NUTRIENTS WHICH IS USED FOR ITS PLANT NUTRIENT 48 CONTENT, AND WHICH IS DESIGNED FOR USE OR CLAIMED TO HAVE VALUE IN 49 PROMOTING PLANT GROWTH, EXCEPT UNMANIPULATED ANIMAL AND VEGETABLE 50 MANURES, AGRICULTURAL LIMING MATERIAL, WOOD ASHES, GYPSUM AND OTHER 51 PRODUCTS EXEMPTED BY REGULATION OF THE COMMISSIONER. 52 (C) "DIGESTATE" MEANS ANY LIQUID OR SOLID THAT IS PRODUCED AS THE 53 RESULT OF THE PROCESS OF ANAEROBIC DIGESTION. 54 (D) "EFFLUENT" MEANS ANY GARBAGE, REFUSE, RAW SEWAGE, SEPTAGE OR 55 SLUDGE PRODUCED FROM A SEWAGE TREATMENT PLANT, WASTE TREATMENT PLANT OR 56 WATER SUPPLY TREATMENT PLANT THAT IS KNOWN TO CONTAIN EXCREMENTITIOUS A. 9827--A 4 1 WASTE PRODUCTS OR OTHER WASTES OR WASHINGS FROM THE BODIES OF HUMAN 2 BEINGS. 3 2. (A) ANY FOOD FOR HUMAN CONSUMPTION OFFERED FOR RETAIL SALE IN NEW 4 YORK IS MISBRANDED IF IT IS PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED 5 OF DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE 6 THROUGH AN ANAEROBIC DIGESTION PROCESS AND THAT FACT IS NOT DISCLOSED AS 7 FOLLOWS: 8 (I) IN THE CASE OF A RAW AGRICULTURAL COMMODITY THAT IS NOT SEPARATELY 9 PACKAGED OR LABELED, THE WORDS "PRODUCED WITH FERTILIZER CONTAINING 10 ANAEROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF 11 THOSE WORDS SHALL BE PLACED ON THE CONTAINER USED FOR PACKAGING, HOLD- 12 ING, AND/OR TRANSPORT IN A CLEAR AND CONSPICUOUS MANNER BY THE MANUFAC- 13 TURER, AND MAINTAINED BY THE DISTRIBUTOR, AND DISPLAYED IN A CLEAR AND 14 CONSPICUOUS MANNER ON THE RETAIL STORE SHELF OR BIN IN WHICH SUCH 15 COMMODITY IS FOR SALE BY THE RETAILER; 16 (II) IN THE CASE OF PROCESSED FOOD CONTAINING SOME PRODUCTS PRODUCED 17 WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY 18 PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN AEROBIC DIGESTION PROC- 19 ESS, THE MANUFACTURER MUST LABEL THE FOOD, IN A CLEAR AND CONSPICUOUS 20 MANNER ON THE PACKAGE OF SUCH FOOD, WITH THE WORDS "PRODUCED WITH FERTI- 21 LIZER CONTAINING ANAEROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY OTHER 22 DERIVATIVE OF THOSE WORDS; AND 23 (III) IN THE CASE OF ANY SEED OR SEED STOCK, THE MANUFACTURER OR OTHER 24 ENTITY RESPONSIBLE FOR PRODUCING THE SEED MUST LABEL THE SEED OR SEED 25 STOCK CONTAINER, THE SALES RECEIPT, AND ANY OTHER REFERENCE TO IDENTIFI- 26 CATION, OWNERSHIP, OR POSSESSION, IN A CLEAR AND CONSPICUOUS MANNER WITH 27 THE WORDS "PRODUCED WITH FERTILIZER CONTAINING ANAEROBICALLY DIGESTED 28 HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF THOSE WORDS. 29 (B) THIS SUBDIVISION SHALL NOT BE CONSTRUCTED TO REQUIRE EITHER THE 30 LISTING OR IDENTIFICATION OF ANY INGREDIENTS THAT WERE PRODUCED WITH 31 COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY 32 PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION 33 PROCESS, NOR THAT THE PHRASE "PRODUCED WITH FERTILIZER CONTAINING ANAE- 34 ROBICALLY DIGESTED HUMAN FECAL MATTER" OR ANY OTHER DERIVATIVE OF THOSE 35 WORDS BE PLACED IMMEDIATELY PRECEDING ANY COMMON NAME OR PRIMARY PRODUCT 36 DESCRIPTOR OF A FOOD. 37 (C) ANY PROCESSED FOOD OR RAW AGRICULTURAL COMMODITY THAT WOULD BE 38 SUBJECT TO THIS SECTION SOLELY BECAUSE IT INCLUDES ONE OR MORE MATERIALS 39 PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR 40 PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC 41 DIGESTIVE PROCESS IS NOT MISBRANDED PROVIDED THAT THESE MATERIALS ON THE 42 AGGREGATE DO NOT ACCOUNT FOR MORE THAN NINE-TENTHS OF ONE PERCENT OF THE 43 TOTAL WEIGHT OF THE PROCESSED FOOD OR RAW AGRICULTURAL COMMODITY. 44 (D) THIS SUBDIVISION SHALL NOT APPLY TO ANY OF THE FOLLOWING: 45 (I) A RAW AGRICULTURAL COMMODITY OR FOOD THAT HAS BEEN GROWN, RAISED, 46 PRODUCED, OR DERIVED WITHOUT THE KNOWING AND INTENTIONAL USE OF FERTI- 47 LIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT 48 THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION PROCESS. INCLUDED WITHIN 49 THE EXCLUSION UNDER THIS PARAGRAPH, THE PERSON RESPONSIBLE FOR COMPLYING 50 WITH PARAGRAPH (A) OF THIS SUBDIVISION WITH RESPECT TO A RAW AGRICUL- 51 TURAL COMMODITY OR FOOD, SHALL OBTAIN FROM WHOMEVER SOLD THE RAW AGRI- 52 CULTURAL COMMODITY OR FOOD TO THAT PERSON, A WRITTEN STATEMENT, WHICH 53 SHALL BE INCLUDED ON AN INVOICE THAT MAY BE IN AN ELECTRONIC FORM, THAT 54 THE RAW AGRICULTURAL COMMODITY OR FOOD: (A) HAS NOT BEEN KNOWINGLY OR 55 INTENTIONALLY PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE 56 PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN A. 9827--A 5 1 ANAEROBIC DIGESTION PROCESS; AND (B) HAS BEEN SEGREGATED FROM, AND HAS 2 NOT BEEN KNOWINGLY OR INTENTIONALLY COMMINGLED WITH FOODS THAT MAY HAVE 3 BEEN PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGESTATE PRODUCED 4 OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC 5 DIGESTION PROCESS. IN PROVIDING SUCH STATEMENT, A PERSON MAY RELY ON A 6 WRITTEN STATEMENT, WHICH MAY BE IN AN ELECTRONIC FORM, FROM HIS OR HER 7 OWN SUPPLIER THAT CONTAINS SUCH AN AFFIRMATION; 8 (II) ANY PROCESSED FOOD THAT WOULD BE SUBJECT TO THIS SUBDIVISION 9 SOLELY BECAUSE ONE OR MORE OF THE PROCESSING AIDS OR ENZYMES USED IN ITS 10 PRODUCTION WERE PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF DIGES- 11 TATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE THROUGH 12 AN ANAEROBIC DIGESTION PROCESS; 13 (III) ANY ALCOHOLIC BEVERAGE THAT IS SUBJECT TO REGULATION BY THE 14 ALCOHOLIC BEVERAGE CONTROL LAW; 15 (IV) FOOD THAT HAS BEEN LAWFULLY CERTIFIED TO BE LABELED, MARKETED, 16 AND OFFERED FOR SALE AS "ORGANIC" PURSUANT TO THE FEDERAL ORGANIC FOODS 17 PRODUCTION ACT OF 1990, 7 U.S.C. 6501, ET SEQ., AND THE NATIONAL ORGANIC 18 PROGRAM REGULATIONS PROMULGATED PURSUANT THERETO BY THE UNITED STATES 19 DEPARTMENT OF AGRICULTURE; 20 (V) FOOD THAT IS NOT PACKAGED FOR RETAIL SALE AND THAT EITHER: (A) IS 21 A PROCESSED FOOD PREPARED AND INTENDED FOR IMMEDIATE HUMAN CONSUMPTION; 22 OR (B) IS SERVED, SOLD, OR OTHERWISE PROVIDED IN ANY RESTAURANT OR OTHER 23 FOOD FACILITY THAT IS ENGAGED IN THE SALE OF FOOD PREPARED AND INTENDED 24 FOR IMMEDIATE CONSUMPTION; OR 25 (VI) MEDICAL FOOD. 26 (E) ANY PERSON, FIRM, CORPORATION, OR OTHER LEGAL ENTITY VIOLATING 27 THIS SUBDIVISION SHALL BE SUBJECT TO THE PENALTIES FOR FALSE LABELS AND 28 MISREPRESENTATIONS AS SET FORTH IN SECTION THREE HUNDRED NINETY-TWO-B OF 29 THIS ARTICLE, PROVIDED HOWEVER THAT A RETAILER SHALL NOT BE PENALIZED 30 FOR THE FAILURE TO LABEL UNDER SECTION THREE HUNDRED NINETY-TWO-B OF 31 THIS ARTICLE UNLESS (I) THE RETAILER IS THE MANUFACTURER OF THE FOOD, 32 SEED OR SEED STOCK PRODUCED WITH COMMERCIAL FERTILIZER COMPOSED OF 33 DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM EFFLUENT THAT HAS GONE 34 THROUGH AN ANAEROBIC DIGESTION PROCESS AND SELLS SUCH FOOD UNDER A BRAND 35 IT OWNS OR (II) THE RETAILER'S FAILURE TO LABEL WAS KNOWING AND WILLFUL. 36 IN AN ACTION IN WHICH IT IS ALLEGED THAT A RETAILER HAS VIOLATED THE 37 PROVISIONS OF THIS SECTION, IT SHALL BE A DEFENSE THAT SUCH RETAILER 38 RELIED ON (A) ANY DISCLOSURE CONCERNING FOODS PRODUCED WITH COMMERCIAL 39 FERTILIZER COMPOSED OF DIGESTATE PRODUCED OR PARTIALLY PRODUCED FROM 40 EFFLUENT THAT HAS GONE THROUGH AN ANAEROBIC DIGESTION PROCESS RECEIVED 41 PURSUANT TO THIS SECTION OR (B) THE LACK OF ANY DISCLOSURE. 42 S 3. Severability clause. If any provision of this act or its applica- 43 tion to any person, legal entity, or circumstance is held invalid, the 44 remainder of the act or the application of the provision to other 45 persons, legal entity or circumstances shall not be affected. 46 S 4. This act shall take effect twenty-four months after it shall have 47 become a law; provided, however, that effective immediately, the depart- 48 ment of agriculture and markets shall adopt any rules and regulations 49 necessary to implement this act, including, but not limited to, creating 50 and maintaining a list, which shall be made available to the public at 51 no cost, of raw agricultural commodities that are produced with commer- 52 cial fertilizer composed of digestate produced or partially produced 53 from effluent that has gone through an anaerobic digestion process.