Revision: Dec. 15, 2023, 3:49 p.m.
HB 1628 - AS INTRODUCED
2024 SESSION
24-3138
08/05
HOUSE BILL 1628
AN ACT relative to regulatory authority for apples, coal grading, potatoes, cider, milk, and lumber.
SPONSORS: Rep. Bixby, Straf. 13
COMMITTEE: Environment and Agriculture
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ANALYSIS
This bill repeals certain regulatory statutes that have been preempted by the federal government and moves regulatory authority for apples, cider, and lumber to the chapter relative to standards for farm products.
This bill is a request of the committee to study the New Hampshire law relative to standards for farm products and marketing and grading commodities established in 2023, 12:1.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-3138
08/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to regulatory authority for apples, coal grading, potatoes, cider, milk, and lumber.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Apples, Apple Cider, and Lumber. Amend RSA 426 by inserting after section 10 the following new subdivision:
Apples
426:11 Official Grades. The commissioner of agriculture, markets, and food shall adopt rules, pursuant to RSA 541-A, establishing official grades of apples packed or repacked within the state, and may from time to time by rule amend or modify such grades. Before establishing, amending or modifying any such grades, the commissioner shall consult with growers and shippers of apples relative to proposed grades, or, upon written petition of 10 or more growers producing annually an aggregate of not less than 100,000 bushels of apples, the commissioner shall, after reasonable notice specifying the date, place and purpose of the proposed hearing, hold a public hearing for the purpose of obtaining information with a view to establishing or amending or modifying as the case may be, such official grades. The grades so established shall include grades identical in name and requirements with all grades or standards of apples as promulgated from time to time by the Secretary of Agriculture of the United States and commonly known as the United States grades. The commissioner may, in an emergency and after consultation with representative growers, establish temporary grades, without holding a public hearing, but he shall indicate the period for which such temporary grades will be in effect. Apples not conforming to official grades, or, if conforming, not branded in accordance therewith, shall be considered "unclassified" and so branded. Each package shall be packed so that the apples in the shown face shall be reasonably representative in size, color and quality of the contents of the package.
426:12 Other Designations Forbidden. The marks indicating the grade as described in RSA 426:11 shall not be accompanied by any other designation of grade or brand which is inconsistent with the marks required by RSA 426:15.
426:13 Minimum Size; Term Defined. The minimum size of all apples in all grades, except unclassified apples as defined in RSA 426:11, shall be marked upon the package and shall be determined by taking the transverse diameter of the smallest fruit in the package at right angles to the stem and blossom ends. Minimum sizes shall be stated in variations of
1/8 of an inch, such as 2 inches, 2-
1/8 inches, 2-
1/4 inches and so forth, in accordance with the facts.
426:14 Exception. If apples are packed in diagonal, layer, cells, trays, or other count type packages the number of apples may be stated in place of the minimum size.
426:15 Certain Information to be Marked on Packages. Each package of apples packed or repacked within the state and intended for sale within or without the state shall be marked or branded except as otherwise provided at the time of packing, repacking or closing with a statement of (a) the quantity of the contents, (b) the name and address of the person by whose authority the apples were packed, (c) the true name of the variety, (d) the official grade or the term "unclassified", and (e) the minimum size or count of the apples contained therein in accordance with RSA 426:11, 13 and 14; except that when offered for sale at retail only the variety, grade and size or count need to be so marked and one sign giving this information, prominently displayed with the apples so offered, may be substituted for the statements otherwise required for individual packages. If the true name of the variety is not known to the packer or other person by whose authority the apples are packed, the statement shall include the words "variety unknown". If apples are repacked, the package shall bear the name and address of the person by whose authority it is repacked in place of that of the person by whose authority it was originally packed.
426:16 Special Closed Packages. Notwithstanding the provisions of RSA 426:15, the commissioner of agriculture, markets, and food may, by authorization of the agricultural advisory board and after public hearing, adopt rules as to the information to be marked on packages of apples enclosed in sealed bags or containers made of transparent material.
426:17 Sales Advertisements. All sales advertisements by radio, television, newspaper, or other medium, open bulk display signs, and printed sales statements shall state the variety, official grade, size of apples, or the term "unclassified" whenever the price is shown, stated or written in connection with the sale of apples.
426:18 Controlled Atmosphere. No person shall sell or exchange or offer or expose for sale or exchange or transport for sale any apples represented as having been exposed to "controlled atmosphere", "modified atmosphere", alone or with other words, or shall so use any such term or form of words or symbols of similar import on any container or lot of apples advertised, sold, offered for sale or transported for sale within this state unless such apples have been kept in a room or storage building with not more than 5 percent oxygen for a minimum of 60 days. A record on a form approved by the commissioner shall be kept at a convenient location adjacent to the room or storage building from the day of sealing to the day of opening of the room or storage building, and shall be subject to review by the commissioner or the commissioner's authorized agents at any time for a period of at least one year.
426:19 Markings. All markings shall be conspicuous, clear and legible.
426:20 Misbranded Apples; Term Defined. For the purpose of this subdivision, sales advertisements or any package of apples packed or repacked within or without the state shall be deemed to be misbranded unless conforming to the requirements of the preceding sections of this subdivision, or to rules adopted by the commissioner of agriculture, markets, and food; provided that no package shall bear any statement, design or device regarding such article or its contents which in any particular shall be false or misleading or falsely branded.
426:21 Administrative Authority. The commissioner of agriculture, markets, and food shall adopt rules for carrying out the provisions of this subdivision. The commissioner shall, in person or by his or her deputy or agent, have free access at all reasonable hours to any place, building, or vehicle in which apples are packed, stored, sold, offered, or exposed for sale or held for transportation. The commissioner shall also have power, in person or by his or her deputy or agent, to open any box, barrel, or other container and may, upon tendering the market price, take such container and its contents or samples therefrom. The commissioner shall have general authority to administer and enforce the provisions of this subdivision and the rules adopted under this subdivision, and to prosecute violations thereof.
426:22 Hearings. When the commissioner learns of any violation of any provision of this subdivision he or she shall cause notice of such violation, together with a copy of the findings, to be given to the person or persons concerned. Persons so notified shall be afforded a hearing under rules adopted by the commissioner, under RSA 541-A. Affidavits under oath may be received by the commissioner of agriculture, markets, and food.
426:23 Penalties.
I. Any person who, by himself or herself or by the person's agent, violates any provision of this subdivision or rule adopted under this subdivision shall be guilty of a misdemeanor. For any subsequent offense, a person shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
II. Any person who violates any provision of this subdivision or any rule adopted or order issued under this subdivision shall, in addition, be liable for a civil forfeiture not to exceed $5,000 for each violation, for each day of a continuing violation, which may be collected in a civil action or in connection with an action for injunctive relief brought by the attorney general.
III. Any person who violates any provision of this subdivision, or any rule or order of the commissioner, shall be subject to the imposition of an administrative fine levied by the commissioner, not to exceed $1,000 for each violation.
Apple Marketing
426:24 Definitions.
As used in this subdivision:
I. "Commissioner" means the commissioner of agriculture, markets, and food.
II. "Distributor" means any person engaged within this state in selling, offering for sale, marketing or distributing apples which he has purchased or acquired from a producer or other person or which he is marketing on behalf of a producer or other person, whether as owner, agent, employee, broker or otherwise, but shall not include a retailer, except such retailer who purchases or acquires from, or handles on behalf of any producer or other person, apples subject to regulation by the marketing agreement or order covering apples.
III. "Handler" means any person engaged in the operation of packing, grading, selling, offering for sale or marketing any marketable apples, who as owner, agent or otherwise ships or causes apples to be shipped.
IV. "Marketing agreement" means an agreement entered into, with the approval of the commissioner, by producers with distributors, processors and handlers regulating the preparation, sale and handling of apples.
V. "Marketing order" means an order issued by the commissioner pursuant to this subdivision governing the marketing for processing, the distributing, the sale of, or the handling in any manner of any apples sold in this state during any specified period.
VI. "Processor" means any person engaged within this state in processing, or in the operation of receiving, grading, packing, canning, freezing, dehydrating, fermenting, distilling, extracting, preserving, grinding, crushing, or in any other way preserving or changing the form of apples for the purpose of marketing apples, but shall not include a person engaged in manufacturing another and different product from apples.
VII. "Producer" means any person engaged within this state in the business of producing, or causing to be produced, for any market 500 bushels or more of apples.
426:25 Powers and Duties of the Commissioner.
I. The commissioner shall, after due notice and hearing, approve marketing agreements, which shall thereupon only be binding upon the signatories thereto.
II. The commissioner may make and issue marketing orders, after due notice and opportunity for hearing, subject to the provisions of paragraph III.
III. No marketing order under this subdivision shall take effect unless and until the producers, through a referendum conducted by the commissioner, indicate its adoption is favored by:
(a) Not less than 66
2/3 percent of the producers participating in the referendum; or
(b) Not less than 65 percent of the producers who have marketed more than 50 percent of the total quantity of the apples which were marketed in the next preceding marketing season by all producers that voted in the referendum; or
(c) More than 50 percent of the producers who have marketed not less than 65 percent of the total quantity of the apples in the next preceding marketing season by all producers that voted in the referendum.
IV. The commissioner, upon written petition duly signed by 25 percent of the producers in the state, shall amend or terminate such order after due notice and opportunity for hearing, but subject to the approval of not less than 50 percent of such producers participating in a referendum vote.
V. The commissioner shall administer and enforce any marketing order while the order is in effect, to:
(a) Encourage and maintain stable prices received by producers for apples at a level which is consistent with the provisions and aims of this subdivision.
(b) Prevent the unreasonable or unnecessary waste of agricultural wealth.
(c) Protect the interests of consumers of apples, to such extent as is deemed to be necessary under the provisions of this subdivision.
(d) Prepare a budget for the administration and operating costs and expenses, including advertising and sales promotion when required in any marketing agreement or order executed hereunder, and to provide for the collection of such necessary fees to defray such costs and expenses, in no case to exceed 5 percent of the gross dollar volume of sales or dollar volume of purchases or amounts handled, to be collected from each person engaged in the production, processing, distributing or the handling of apples produced in this state and directly affected by any marketing order issued pursuant to this subdivision for apples.
(e) Cooperate with the legally constituted authorities responsible for apple production, distribution and sales in the other states and the federal government.
VI. Any marketing agreement or order issued by the commissioner pursuant to this subdivision may contain any or all of the following:
(a) Establishment of uniform grading, standards and inspection of apples.
(b) Establishment of research programs designed to benefit apples or New Hampshire agriculture in general.
(c) Provisions for the establishment of an adequate system for estimating total season crop and future potential crops.
(d) Provisions for determining the growing, handling and marketing conditions of apples.
(e) Provisions for contracting with appropriate parties for promotion, paid advertising and other publicity for apples.
(f) Such rules adopted in accordance with RSA 541-A that may be necessary to effect a marketing agreement or order.
(g) The penalties to be imposed for failure to comply with a marketing agreement or order.
VII. The commissioner may temporarily suspend the operation of an effective marketing order for a continuing period of not longer than one growing and marketing season if the purposes of this subdivision are deemed unnecessary during such season.
VIII. The commissioner shall take into consideration in determining whether or not to issue a marketing agreement or marketing order the following economic factors:
(a) The quantity of apples available for distribution.
(b) The quantity of apples normally required by consumers.
(c) The cost of producing apples.
(d) The purchasing power of consumers.
(e) The level of prices of commodities, services and articles which the farmers commonly buy.
(f) The level of prices of other commodities which compete with or are utilized as substitutes for apples.
426:26 Marketing Agreements and Marketing Orders; Not Concurrent.
I. The execution of any marketing agreement shall in no manner affect the issuance, administration or enforcement of any marketing order provided for in this subdivision.
II. The commissioner may issue such marketing order without executing a marketing agreement or may execute a marketing agreement without issuing a marketing order covering apples.
III. The commissioner, in his discretion, may hold a concurrent hearing upon a proposed marketing agreement and a proposed marketing order in the manner provided for giving due notice and opportunity for hearing for a marketing order as provided in this subdivision.
IV. The commissioner shall require the applicants petitioning for the issuance, amendment or termination of any marketing order to deposit with the commissioner such amount of money as he deems to be necessary to defray the expenses of preparing, amending or terminating a marketing order.
V. In the event the marketing order is adopted, amended or terminated by the producers participating in the referendum provided for in RSA 434:34, III, the commissioner shall reimburse to such applicant any unexpended moneys collected as a deposit pursuant to paragraph IV.
426:27 Hearings. The commissioner may call for hearings as required by this subdivision by giving interested parties 10 days' notice which states the time, place and purpose of the scheduled hearing.
Cider
426:28 Definitions.
In this subdivision:
I. "Cider" means the unfermented juice of apples.
II. "Commissioner" means the commissioner of the department of agriculture, markets, and food.
III. "Person" means any individual, firm, company, partnership, corporation, association, cooperative, business trust, or legal entity of any kind.
426:29 Manufacture and Sale. The commissioner may adopt rules, pursuant to RSA 541-A, relative to the manufacture, blending, labeling, and sale of cider in New Hampshire. Such rules shall be designed to ensure the following:
I. That any cider which is claimed or implied to have been produced in New Hampshire is in fact produced in New Hampshire.
II. That the term "cider" have a specific commercial definition in New Hampshire, and that the term's commercial use in New Hampshire be restricted to the sale of products which fall under that definition.
III. That all other terms used in the labeling and sale of cider and cider blends in New Hampshire be consistent and clear.
IV. That any container of cider sold in New Hampshire bears a label which clearly identifies its producer, and which conspicuously and accurately describes its contents.
V. That unpasteurized cider may be sold within the state if such cider is clearly labeled as unpasteurized.
426:30 Prohibitions. It shall be unlawful in New Hampshire to manufacture, sell, or distribute cider or any product called "cider" by any means that violate any of the provisions of this subdivision, or any of the rules adopted under this subdivision.
426:31 Administrative Authority; Inspectors; Rulemaking. The commissioner shall have general authority to administer and enforce the provisions of this subdivision and may adopt rules pursuant to RSA 541-A as are necessary to carry out the purposes of this subdivision. The commissioner or duly authorized agent shall have free access at all reasonable hours to any place, building or vehicle in which apple cider is manufactured, sold, offered, or exposed for sale or exchanged or distributed at retail or wholesale. The commissioner or duly authorized agent shall have authority to open any package or container, and may upon tendering the market price take such container and its contents or sample from the package or container.
426:32 Stop Sale, Use or Removal Orders. When the commissioner or duly authorized agent has reasonable cause to believe cider is being distributed in violation of any of the provisions of this subdivision, or any of the rules adopted under this subdivision, the commissioner or duly authorized agent may issue and serve a written "stop sale, use or removal" order upon the owner or custodian of any such cider. The cider shall not be sold, used or removed until the provisions of this subdivision have been complied with and the cider has been released by the commissioner or duly authorized agent or the violation has been otherwise disposed of as provided in this subdivision by a court of competent jurisdiction.
426:33 Hearings. When the commissioner learns of any violation of any provision of this subdivision, notice of such violation, together with a copy of the findings, shall be given to the person or persons concerned. Persons so notified shall be afforded a hearing under rules adopted by the commissioner. Affidavits under oath may be received by the commissioner.
Grading and Certification or Stamping of Native Lumber
426:34 Grading and Certification or Stamping of Native Lumber.
I. For the purposes of this subdivision, "native lumber" means wood processed in the state of New Hampshire by mills registered in accordance with the provisions of RSA 227-I. Such wood shall be considered certified or stamped in accordance with the requirements of this section.
II.(a) Notwithstanding any provision of law to the contrary, a mill registered in accordance with RSA 227-I selling native lumber shall, when required, certify in writing to the purchaser on a form approved by the commissioner of agriculture, markets, and food that the quality and safe working stresses of the lumber are equal to or better than No. 2 grade in accordance with the conditions set forth in the American Softwood Standard PS 20-70, or as amended, provided that lumber for use in load bearing wall members shall be of stud grade minimum. The certificate shall include wood species, quantity, location of use, green or dry, sawmill name, name of permitted grader and date. The certification shall be filed with the local building official having jurisdiction as part of the building permit application.
(b) Notwithstanding subparagraph (a), a mill registered in accordance with RSA 227-I selling native timber may stamp such timber.
III. The commissioner of agriculture, markets, and food, in consultation with the division of forests and lands and the University of New Hampshire cooperative extension, shall establish standards for mill graders who will stamp or certify native lumber. The commissioner shall issue a written permit to each mill grader who has received training and who demonstrates by examination or other procedure prescribed by the commissioner in rulemaking, competence and ability to grade and certify or stamp native lumber in accordance with paragraph II of this section. No lumber shall be sold as certified or stamped native lumber unless it is accompanied by a certificate signed by a grader holding a valid permit.
IV. Any municipality which has adopted a building code which requires regular grade stamped lumber shall accept a stamp or a certificate prepared pursuant to this subdivision which certifies that the native lumber meets the appropriate structural standards in lieu of an accepted and recognized lumber grading stamp. Any structure which is built with such approved native lumber shall be considered equivalent to a structure built with regular grade stamped lumber.
426:35 Rulemaking. The commissioner of agriculture, markets, and food shall adopt rules, under RSA 541-A, necessary to administer this subdivision.
426:36 Prohibited Acts; Administrative Penalty. It shall be unlawful for any person to sell any lumber as stamped or certified native lumber unless such lumber has been graded and certified or stamped in accordance with RSA 426:34 Any person who violates any provision of this subdivision or any rule or order adopted or issued under this subdivision shall be liable for an administrative fine not to exceed $1,000 for each violation.
2 Cider; Definition; Cross Reference Changed. Amend RSA 175:1, XVI-a to read as follows:
XVI-a. "Cider" means either the naturally fermented expressed juice of apples or the fermented expressed juice of apples to which activated yeast is added, containing not less than 1/2 of one percent alcohol by volume at 60 degrees Fahrenheit, which may contain flavoring, coloring or related ingredients and may be carbonated or fermented in a sealed container to produce a sparkling beverage or liquor. Cider, as defined here, shall not include cider as defined in [RSA 434:40-a] RSA 426:28.
3 Repeals. The following are repealed:
I. RSA 426:6 relative to the definition of “organic.”
II. RSA 426:6-a relative to the labeling and advertising of items as “organic.”
III. RSA 426:6-b, I relative to the certification of organic goods.
IV. RSA 426:6-b, VI relative to the certification of organic goods.
V. RSA 426:6-c, relative to the regulatory services promotional products fund.
VI. RSA 426:6-d, relative to the organic processors-handlers certification fund.
VII. RSA 426:8-a, relative to fees.
VIII. RSA 434:1-3, relative to standards for box sizing.
IX. RSA 434:7-8, relative to standards for ice dealers.
X. RSA 434:9-10 relative to coal grading standards.
XI. RSA 434:11-18, relative to standards for potatoes.
XII. RSA 434: 19-39, relative to apple grading standards and procedures.
XIII. RSA 434:40-a through 434:4-h, relative to cider standards.
XIV. RSA 434:41-58, relative to regulatory authority for milk standards, licensing, and pricing.
XV. RSA 434:59-61, relative to lumber standards.
XVI. RSA 6:12, I(b)(346), relative to the regulatory services promotional products fund.
XVII. RSA 6:12, I(b)(347), relative to the organic processors-handlers certification fund.
4 Effective Date. This act shall take effect 60 days after its passage.