2009 California Food and Agricultural Code - Section 36631-36638 :: Article 2. Temporary Standards

36631.  (a) The Legislature intends that the director administer
this article to accommodate, in a timely fashion, safe and wholesome
milk products.
   (b) This article applies to products resembling milk products that
are processed and sold pursuant to Chapter 6 (commencing with
Section 38901) and all milk and dairy products processed and sold
pursuant to this division. This article does not apply to any of the
following:
   (1) Combination milk and food products processed and sold pursuant
to regulations adopted pursuant to Article 3 (commencing with
Section 36661).
   (2) Special varieties of cheese processed and sold pursuant to
regulations adopted pursuant to Section 37402.
   (c) For purposes of this article, "new milk product" or "new
product resembling a milk product" means a product for which no state
statutory or administrative regulation standard of identity exists,
and may include a product that is classified by the United States
Food and Drug Administration as nonstandard.

36632.  (a) Upon the request of any interested person, the director
may, following a properly noticed hearing, pursuant to subdivision
(c) of Section 36634, grant a temporary standard for an initial
period of one year. A temporary standard may be granted for a new
milk product or a new product resembling a milk product. However, in
no case shall a temporary standard be granted for a product for which
a definition and standard was contained in a bill which was not
enacted during the immediately preceding session of the Legislature.
A hearing called pursuant to this section shall be by written brief,
unless an oral hearing is specifically requested by an interested
person.
   (b) The petition shall include a proposed definition, standard,
nomenclature, and label for the new product. The petition shall also
address the relation between the proposed product and existing
definitions and standards established for comparable products.

36633.  (a) A hearing called pursuant to this article shall be for
the following purposes:
   (1) Establishing if the product proposed for a temporary standard
qualifies for that standard.
   (2) Evaluating whether a temporary standard has been properly
sought for the proposed product definition, standard, nomenclature,
and label offered by the petitioner.
   (b) Following the hearing, the director shall evaluate the
temporary standard request on the basis of all of the following:
   (1) Testimony submitted by all interested persons.
   (2) The health and safety conditions under which the proposed
product will be processed and distributed.
   (3) Existing definitions and standards which are established for
comparable products.
   (c) In granting a temporary standard, the director shall establish
an appropriate definition and nomenclature as well as quality and
labeling requirements applicable to the permitted product.

36634.  The processing of a petition for a temporary standard shall
conform to the following schedule:
   (a) Notice of the requested hearing or denial thereof shall be
announced by the director within 15 days after receipt of a temporary
standard petition.
   (b) A hearing called pursuant to this section shall be held not
later than 65 days following receipt of a temporary standard
petition.
   (c) The hearing shall be conducted in procedural compliance with
applicable provisions of Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code.
   (d) The petitioner for a temporary standard shall be notified of
the director's decision on the request not later than 30 days
following the closing of the hearing. A temporary standard approved
by the director shall be effective immediately upon issuance of the
director's decision, subject to Section 36637.

36635.  An unsuccessful petitioner for a temporary standard may
repetition not earlier than 60 days following written notification of
the denial of the original temporary standard request, if the
proposed definition and standard have been modified in the interim or
other conditions have changed so that a favorable ruling by the
director might reasonably be expected.

36636.  A temporary standard granted pursuant to this article may be
renewed for a period of one year if the director determines that the
renewal is necessary to adequately assess the market potential of
the product. A second renewal of a temporary standard may be granted
at the discretion of the director, except that in no case shall the
second renewal be granted if legislation intended to permanently
establish a standard and definition for the product currently being
marketed pursuant to a temporary standard has not been introduced
during the term of the standard.
   The maximum duration of a temporary standard, including any
renewals, shall not exceed three years.

36637.  Upon granting a petition under this article, the director
shall adopt the standard as an emergency regulation pursuant to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code. For the purposes of this chapter,
any regulations adopted under this article shall be deemed to be
necessary for the immediate preservation of the public peace, health
and safety, or general welfare.

36638.  If the director fails to respond to a petition for a
temporary standard within 65 days following receipt of the petition,
the petitioner may thereafter utilize the standard. However, the
right of petitioner to utilize the standard shall expire at the end
of the calendar year of the Regular Session of the Legislature
immediately following the year in which the use of that standard by
petitioner commenced, unless that standard is enacted into law during
that calendar year of the regular session of the Legislature.