110552
. (a) The department shall regulate candy to ensure that the
candy is not adulterated.
(b) For the purposes of this chapter, "candy" means any
confectionary intended for individual consumption that contains
chili, tamarind, or any other ingredient identified as posing a
health risk in regulations adopted by the office or department.
(c) For purposes of this section, the following terms have the
following meanings:
(1) "Office" means the Office of Environmental Health Hazard
Assessment.
(2) "Adulterated candy" means any candy with lead in excess of the
naturally occurring level. Moreover, candy is adulterated if its
wrapper or the ink on the wrapper contains lead in excess of
standards which the office, in consultation with the department and
the Attorney General, shall establish by July 1, 2006.
(3) "Naturally occurring level" of lead in candy shall be
determined by regulations adopted by the office after consultation
with the department and the Attorney General. For purposes of this
section, the "naturally occurring level" of lead in candy is only
naturally occurring to the extent that it is not avoidable by good
agricultural, manufacturing, and procurement practices, or by other
practices currently feasible. The producer and manufacturer of candy
and candy ingredients shall at all times use quality control measures
that reduce the natural chemical contaminants to the "lowest level
currently feasible" as this term is used in subsection (c) of Section
110.110 of Title 21 of the Code of Federal Regulations. The
"naturally occurring level" of lead shall not include any lead in an
ingredient resulting from agricultural equipment, fuels used on or
around soils or crops, fertilizers, pesticides, or other materials
that are applied to soils or crops or added to water used to irrigate
soils or crops. The office shall determine the naturally occurring
levels of lead in candy containing chili and tamarind no later than
July 1, 2006. The office shall determine the naturally occurring
levels of lead in candy containing other ingredients upon request by
the department or the Attorney General, and in the absence of a
request, when the office determines that the presence of the
ingredient in candy may pose a health risk. Until the office adopts
regulations determining the naturally occurring level of lead, the
Attorney General's written determination, if any, including any
determination set forth in a consent judgment entered into by the
Attorney General, of the naturally occurring level of lead in candy
or in a candy ingredient shall be binding for purposes of this
section.
(4) "Wrapper" means all packaging materials in contact with the
candy, including, but not limited to, the paper cellophane, plastic
container, stick handle, spoon, small pot (olla), and squeeze tube,
or similar devices. "Wrapper" does not include any part of the
packaging from which lead will not leach, as demonstrated by the
manufacturer, to the satisfaction of the office.
(d) The standards adopted pursuant to paragraphs (2) and (3) of
subdivision (c) shall be reviewed by the office every three-year to
five-year period in order to determine whether advances in scientific
knowledge, the development of better agricultural or manufacturing
practices, or changes in detection limits require revision of the
standards.
(e) The department shall do all of the following:
(1) Ensure that the candy is not adulterated.
(2) Establish procedures for the testing of candy and the
certification of unadulterated candy products. The procedures shall
require candy manufacturers to certify candy as being unadulterated.
The certification shall be based on appropriate sampling and testing
protocols as determined by the office in consultation with the
Attorney General's office.
(3) Through its Food and Drug Branch, test the samples of candy
collected pursuant to this article. The department may test any
candy, including candy tested pursuant to paragraph (2) in order to
ensure the candy is unadulterated.
(4) Adopt regulations necessary for the enforcement of this
article.
(5) Evaluate the regulatory process, identify problems, and make
changes or report to the Legislature, as necessary.
(f) If the candy tested pursuant to paragraph (2) or (3) of
subdivision (e) is found to be adulterated, the department shall do
both of the following:
(1) Issue health advisory notices to county health departments
alerting them to the danger posed by consumption of the candy.
(2) Notify the manufacturer and the distributor of the candy that
the candy is adulterated, and that the candy may not be sold or
distributed in the state until further testing proves that the candy
is unadulterated.
(g) (1) For any candy found to be adulterated, the manufacturer or
distributor may request that the department test a subsequent sample
of candy. The department shall select the candy to be tested. The
cost of any subsequent sampling and testing shall be borne by the
manufacturer or distributor requesting the additional testing.
(2) If the candy is found to be unadulterated when it is retested,
the department shall provide the manufacturer or distributor and the
county health department with a letter stating that the candy has
been retested and determined to be unadulterated, and that the sale
and distribution of the candy in the state may resume.
(3) If the candy is found to remain adulterated when retested, the
manufacturer or distributor may take corrective measures and
continue to resubmit samples for testing until tests prove the candy
unadulterated.
(h) (1) The sale of adulterated candy to California consumers is
a violation of this section. Any person knowingly and intentionally
selling adulterated candy shall be subject to a civil penalty of up
to five hundred dollars ($500) per violation. The regulations adopted
shall provide that funding for this section shall be met in part or
in whole by those penalties, upon appropriation by the Legislature.
(2) In the event that a candy product is found to be adulterated,
the department may recover the costs incurred in the chemical
analysis of that product from the manufacturer or distributor.
(3) Except as expressly set forth in this section, nothing in this
section shall alter or diminish any legal obligation otherwise
required in common law or by statute or regulation, and nothing in
this section shall create or enlarge any defense in any action to
enforce that legal obligation. Penalties imposed under this section
shall be in addition to any penalties otherwise prescribed by law.
(4) This section shall not be the basis for any stay of
proceedings or other order limiting or delaying the prosecution of
any action to enforce Section 25249.6.