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Proposed New Rules: N.J.A.C. 2:71-8
Authorized By: State Board of Agriculture and Charles M. Kuperus, Secretary, Department of Agriculture.
Authority: N.J.S.A. 4:1-11.1, 4:1-21.2, 4:10-1 et seq., 4:10-14, 4:10-15, and 4:10-16 et seq.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2006-177.
Submit written comments by August 4, 2006 to:
Alfred Murray, Director
Division of Marketing and Development
N.J. Department of Agriculture
P.O. Box 330
Trenton, New Jersey 08625‑0330
The agency proposal follows:
Summary
The organic industry is the fastest growing and most profitable sector of local, national and international agriculture. Since 1990, retail growth for organic products has increased annually at a rate of approximately 20 percent. As of 2002, organic products were sold in approximately 20,000 natural food stores and 74 percent of all conventional grocery stores throughout the United States. Between 1992 and 1997, the number of acres of cropland certified as organic doubled to approximately 1.3 million acres. Estimated total sales for organic products increased from $1 billion in 1990, to $3.3 billion in 1996, to $6.5 billion in 1999, and $7.8 billion in 2000.
The Department of Agriculture (Department) is proposing new rules at N.J.A.C. 2:71-8 to permit producers or handlers of New Jersey grown organic agricultural commodities who are certified by the New Jersey Department of Agriculture to market their products using the “Jersey Organic” logo. The use of the “Jersey Organic” logo will permit certified organic producers or handlers to make New Jersey grown organic commodities more visible and help promote the viability of the industry by identifying the availability of a product that many believe to be superior. The “Jersey Organic” logo is a component of the Department’s overall “Jersey Fresh” marketing program. Like “Jersey Fresh” has done with New Jersey grown fruits and vegetables, the “Jersey Organic” logo will provide New Jersey organic growers with a better market position and allow the industry to be more competitive, while providing consumers with the confidence that they are purchasing high-quality organic products.
The proposed new rules are designed to be a marketing tool for New Jersey producers and handlers who are certified pursuant to proposed N.J.A.C. 2:78, New Jersey Organic Certification Program, which is proposed at 38 N.J.R. 1899(a) (May 15, 2006). As a result, these proposed new rules should be read in conjunction with proposed N.J.A.C. 2:78. The proposed new rules are not intended to supersede the requirements of proposed N.J.A.C. 2:78, but rather, are additional standards imposed for those within the organic industry who wish to be part of the “Jersey Organic” promotion program. The proposed organic certification program will have its own official certification logo, which can be used in addition to and in conjunction with the “Jersey Organic” logo established by proposed N.J.A.C. 2:71-8.3. These rules will become effective and the logo will become available for use only after the Department becomes accredited by the United States Department of Agriculture, National Organic Program as a certifying agent pursuant to 7 CFR §205.101 et seq.
N.J.A.C. 2:71-8.1 sets forth the scope and purpose of the proposed new rules. N.J.A.C. 2:71-8.2 sets forth definitions of terms used in the proposed new rules.
N.J.A.C. 2:71-8.3 adopts an official “Jersey Organic” emblem to be used as logo to identify New Jersey grown organic agricultural commodities. All organic agricultural commodities marketed under the “Jersey Organic” program shall comply with the specific grades and standards for each commodity as set forth at N.J.A.C. 2:71-1, 2 and 5 and shall be certified in accordance with proposed N.J.A.C. 2:78. Use of this logo is allowed only by persons or entities who obtain a license in accordance with the procedures set forth in N.J.A.C. 2:71-8.4, including the payment of a $30.00 licensing fee to be paid to the New Jersey Farm Products Publicity Fund, created pursuant to N.J.S.A. 4:10-16. In order to be licensed, individuals or entities must satisfy all the conditions set forth in N.J.A.C. 2:71-8.3 and 2:78 and N.J.S.A. 4:10-5 and 4:10-14. Only producers or handlers certified by the Department will be entitled to obtain a “Jersey Organic” license. This limitation is necessary because not all certifying agents enforce and/or interpret National Organic Program standards in the same manner. To ensure consistency in enforcement of the high quality standards associated with the “Jersey Organic” promotional program, licensure will only be open to those producers or handlers certified by the Department.
Penalty provisions for this subchapter are set forth in N.J.A.C. 2:71-9.5. If any provisions of N.J.S.A. 4:10-14 are violated, a penalty may be imposed that shall not to exceed $50.00 for the first offense and not more than $100.00 for each subsequent offense. Violations of N.J.S.A. 4:10-5 are subject to a penalty of $50.00. Procedures are established for reapplying after license revocation, as well as revocation in the face of a second violation.
As the Department has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.
Social Impact
The “Jersey Organic” advertising and promotional program was developed to draw consumer attention to the availability of certified quality New Jersey “Jersey Organic” agricultural commodities. This program is based on the Jersey Fresh promotional program, which has been going strong for almost a quarter of a century, and has become the standard against which other states modeled their own marketing programs. As a result of the Jersey Fresh advertising and promotional program, New Jersey consumers are assured of the quality and freshness of the food they purchase. In fact, a 1998 study conducted by Rutgers University (New Jersey Agricultural Experimental Station, P-02137-2-98, February 1998) confirmed that consumers view Jersey Fresh products as better quality agricultural products.
The proposed new rules will have a positive social impact by expanding the advertising and promotional program to New Jersey certified organic agricultural commodities, thereby helping to maintain an important segment of New Jersey’s agriculture. New Jersey farms provide tax-paying open space and add diversity to the agricultural landscape that benefits the quality of life throughout the Garden State. Products packed under the “Jersey Organic” logo will enhance the promotion of these uniformly packed high quality New Jersey farm products to the benefit of producers, packers and consumers. Producers or packers will gain new markets for their products, while consumers will have more quality products available.
Economic Impact
The market for organically produced agricultural products has exhibited dynamic growth. Current in-State production is estimated to have a value of $3 million and there is an extremely strong consumer demand for these products. The proposed new rules will have a positive economic impact for New Jersey by providing an additional marketing tool for New Jersey Department of Agriculture certified organic producers or handlers of organic agricultural commodities that choose to use the “Jersey Organic” logo on their products. There is no cost for anyone who does not participate in this voluntary program. For those who choose to participate, the cost is $30.00 per year for the annual licensing fee, which will be offset by the value added to the product by use of the logo on packaging materials. Therefore, the proposed new rules will have a positive economic impact. Additional costs may be incurred by individuals or entities who violate these rules and are subject to penalties as discussed in the Summary above.
Federal Standards Statement
Executive Order No. 27 (1994) and N.J.S.A. 52:14B-23 (P.L. 1995, c. 65) require administrative agencies which adopt, readopt, or amend any State rules that exceed any Federal standards or requirements to include in the rulemaking a comparison between the two sets of standards and an explanation of the costs and benefits associated with adopting a State standard that exceeds a Federal standard. Because there are no Federal standards governing the creation and regulation of a logo identifying New Jersey agricultural products, as provided by N.J.S.A. 4:10-1 et seq. and 4:10-16 et seq., Executive Order No. 27 and N.J.S.A. 52:14B-23 do not require a comparison of this rule with Federal law, and no Federal standards analysis is necessary.
Jobs Impact
It is not anticipated that the proposed new rules will result in the generation or loss of jobs. However, it is anticipated that the rules will positively affect the New Jersey Organic industry and others associated with the agricultural industry, averting the permanent loss of jobs in agriculture.
Agriculture Industry Impact
The proposed new rules will have a positive impact on New Jersey agriculture by helping to maintain a viable organic industry in the Garden State as described in the Summary, Social Impact and Economic Impacts above.
Regulatory Flexibility Analysis
The proposed new rules have an impact on small businesses, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., primarily farmers.
The proposed new rules will expand the Jersey Fresh program to protect the interests of the organic industry by offering the use of the “Jersey Organic” logo to producers and handlers who are certified by the Department. The use of uniform product identification promotes the orderly marketing of goods that are similar in the generic sense and allows equally good products from the small farm to compete with the products of larger operations. Should an organic producer or handler choose to participate under the voluntary rules, the cost of participating should be offset by higher prices received for the “Jersey Organic” product and by the valuable marketing program provided. Since these proposed new rules are part of a voluntary program, they do not impose unduly burdensome recording, recordkeeping or compliance requirements on either large or small businesses. If this labeling is voluntarily undertaken, the organic producer or handler must ensure that the labeling is accurate. The compliance, recording and recordkeeping requirements are necessary to protect public confidence in products purchased. As a result, there can be no lesser or differing standards based on business size.
There is no professional assistance required nor initial capital outlays to any business by these proposed rules. Although a small annual licensing fee of $30.00 is required, should a certified producer or handler choose to participate under the voluntary rules, the cost of participating should be offset by the anticipated higher prices received for the “Jersey Organic” products. Given the preponderance of small producers and the Program's purpose to promote high quality products, the Department has provided no lesser or differing requirements or exceptions based on business size.
Smart Growth Impact
The Department believes that the proposed new rules will have no impact on the achievement of smart growth or on the implementation of the State Development and Redevelopment Plan.
Full text of the proposed new rules follows:
SUBCHAPTER 8. “JERSEY ORGANIC” LOGO
2:71-8.1 Scope and purpose
- A New Jersey “Jersey Organic” producer or handler who is certified by the Department pursuant to N.J.A.C. 2:78 to sell or distribute products identified as organic agricultural products is permitted to make application to the New Jersey Department of Agriculture for a license to use the “Jersey Organic” logo in marketing agricultural commodities.
- These rules will become effective and the logo identified in N.J.A.C. 2:71-8.3(h) will become available for use only after the Department becomes accredited by the United States Department of Agriculture, National Organic Program as a certifying agent pursuant to 7 CFR §205.101 et seq.
2:71-8.2 Definitions
The following words and terms, as used in this subchapter, shall have the following meanings. Words of art undefined in the following paragraphs shall have the meaning attributed to them by trade usage or general usage as reflected by definition in a standard dictionary, such as Webster's.
“Agricultural commodities” means any fresh fruits, vegetables, ornamental, horticultural and floricultural products listed in N.J.A.C. 2:71-2.4.
“Certified” means an entity determined to be in compliance with the New Jersey Organic Certification Program set forth in N.J.A.C. 2:78 and which possesses a certificate from the Department designating it as a certified organic operation.
“Certifying agent” means any entity accredited by the United States Secretary of Agriculture as a certifying agent pursuant to the National Organic Program, 7 CFR Part 205.
“Crops” means a plant or part of a plant intended to be marketed as an agricultural product or fed to livestock.
“Department” means the New Jersey Department of Agriculture.
“Handler” means any person engaged in the business of handling agricultural products, including producers who handle crops or livestock of their own production, except such term shall not include final retailers of agricultural products that do not process agricultural products. For the purposes of this definition, handling shall include the selling, processing or packaging of agricultural products and shall not include the sale, transportation of delivery of crops or livestock by the producer thereof to a handler.
“Livestock” means any cattle, sheep, goat, swine, poultry, or equine animals used for food or in the production of food, fiber, feed, or other agricultural-based consumer products; wild or domesticated game; or other nonplant live, except such term shall not include aquatic animals or bees for the production of food, fiber, feed, or other agricultural-based consumer products.
“Producer” means a person who engages in the business of growing or producing food, fiber, feed and other agricultural-based consumer products.
“Organic” means a labeling term that refers to any agricultural products produced in accordance with the National Organic Program, 7 CFR Part 205.
“Organic certification number” means the identification number listed on the organic certification certificate issued to the organic producer or handler.
“Retailer” means a restaurant, delicatessen, bakery, grocery store, or any retail outlet with an in-store restaurant, delicatessen, bakery, salad bar or other eat-in or carry-out service of processed or prepared raw and ready-to-eat food.
2:71-8.3 Use of the "“Jersey Organic”" logo
- The Department approves the use of “Jersey Organic” in conjunction with the New Jersey map symbol under provisions of N.J.S.A. 4:10-5 and 4:10-15 as an official emblem for identifying New Jersey produced organic products.
- The configuration of the “Jersey Organic” logo is as follows:
- Persons, firms, partnerships, corporations, cooperatives or associations must possess a valid organic certificate, issued by Department pursuant to N.J.A.C. 2:78 in order to apply for and utilize the “Jersey Organic” logo.
- Only those persons, firms, partnerships, corporations, cooperatives or associations licensed to use the “Jersey Organic” logo pursuant to N.J.A.C. 2:71-8.4, shall be permitted to attach or imprint it upon any documents, labels, packages or containers related to their products or to employ its use in advertising or in any manner whatsoever. Layout of proposed advertising to be used for the marketing of “Jersey Organic” agricultural products must be submitted to and approved by the Department’s Division of Marketing and Development in advance of its manufacture and/or use. Advertising layouts will be evaluated based upon the following criteria:
The color scheme of the advertisement;
The font used;
The configuration, color, and size of the logo;
Placement of the logo;
The advertising medium used; and
Consistency with the wholesome image of the “Jersey Fresh” Promotional Program.
(e) When a license holder discontinues use of the “Jersey Organic” logo, fails to renew its license when required or has its license revoked, the license holder shall be prohibited from its use in any manner, including, but not limited to, stationery, forms, advertising on billboards or other signs or on trucks or car panels.
(f) All agricultural organic commodities marketed under the “Jersey Organic” logo program must comply with the specific grades and standards for each commodity as set forth at N.J.A.C. 2:71-1, 2 and 5 and meet the conditions for organic certification set forth in N.J.A.C. 2:78. Persons, firms, partnerships, corporations, cooperatives or associations are prohibited from using the “Jersey Organic” logo on any agricultural commodity that does not meet the requirements of this subchapter.
(g) All unlicensed and/or uncertified persons, firms, partnerships, corporations, cooperatives or associations shall be prohibited from using the “Jersey Organic” logo in any manner.
2:71-8.4 Licensing
(a) Any producer or handler wishing to employ the “Jersey Organic” logo shall make application to the New Jersey Department of Agriculture for a license to do so. The application shall be made in writing, upon a form provided by the Department for this purpose. The application shall identify the name, address and organic certification number of the user, the commodities for which the user is seeking a license and other such information as the Department deems necessary for the enforcement of the “Jersey Organic” logo program. Applications can be obtained by contacting the Department at Director, Division of Marketing and Development, N.J. Department of Agriculture, P.O. Box 330, Trenton, New Jersey 08625‑0330.
(b) All applications approved for issuance of a license shall have the license granted for the period of one year commencing April 1. Licenses shall be renewed annually upon application filed with the Department 60 days prior to April 1 of each year.
(c) A non-refundable annual fee of $30.00 shall accompany all initial and license renewal application forms and shall be made payable to the New Jersey Farm Products Publicity Fund.
(d) The Department will hold confidential any information provided in the application which constitutes proprietary commercial or financial information, or is otherwise protected from disclosure under the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., subject to the limitations set forth therein.
(e) The Division of Marketing and Development shall make an initial determination as to whether to deny an initial license or an annual license renewal pursuant to (a) and (b) above, or revoke a license as provided in N.J.A.C. 2:71-8.5(b).
2:71-8.5 Penalties
(a) Any person, firm, partnership, corporation, cooperative or association using the “Jersey Organic” logo for organic agricultural commodities without satisfying the requirements set forth in N.J.A.C. 2:78 or this subchapter, any unlicensed or uncertified producer or handler using the “Jersey Organic” logo, or anyone violating any provision of N.J.S.A. 4:10-1 et seq., shall be subject to a penalty of not more than $50.00 for the first offense and not more than $100.00 for each subsequent offense.
(b) After the second violation of any part of this subchapter by the same licensed person, firm, partnership, corporation, cooperative or association during the same calendar year, the license to use the “Jersey Organic” logo shall be revoked for the remainder of the license year.
1. The Division of Marketing and Development shall make an initial determination as to whether to revoke a license under this subsection.
2. Revocation of a license pursuant to this subsection does not prohibit a licensee from reapplying for a license for the next license year.
(c) Any applicant who is aggrieved by the determination of the Division of Marketing and Development pursuant to N.J.A.C. 2:71-8.4 or 8.5, upon written request as provided below, shall be afforded the opportunity for a hearing thereon in the manner provided for contested cases pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative Procedure Rules N.J.A.C. 1:1.
1. Written requests for hearings shall be sent to:
Director, Division of Marketing and Development
N.J. Department of Agriculture
P.O. Box 330
Trenton, New Jersey 08625‑0330
2. Written request for hearings must be transmitted to the Department within 20 days of the license denial or notice of intent to revoke a license.
(d) The State Board of Agriculture shall make a final determination as to whether to deny or revoke a license following a hearing as provided in (c) above.
(e) Orders for penalties or to enjoin continuing violations may be enforced by the filing of a summary proceeding brought in the name of the Department in Superior Court or Municipal Court.
Charles M. Kuperus, Secretary
New Jersey Department of Agriculture
December 15, 2005
