§ 5-109. Packaging, storage, and safe handling of produce.
A. This section shall apply to all produce growers that are required to comply with the U.S. Food and Drug Administration’s produce safety rules as provided in 21 CFR §§ 112.1, 112.3, 112.4, 112.5, 112.6 and 21 U.S.C. § 350h.
B. This rule shall not apply to produce growers and fruits and vegetables that are exempt under 21 U.S.C. § 350h and the U.S. Food and Drug Administration’s produce safety rules provided in 21 CFR §§ 112.3 through 112.6.
C. Definitions. For purposes of this section, the following definitions shall apply:
1. “Produce” means any fruit or vegetable product intended for human consumption.
2. “Covered” produce means produce included in 21 CFR § 112.1.
3. “Excluded” produce means produce included in 21 CFR § 112.2.
D. A person who grows, harvests, packs or holds both covered and excluded produce must take measures during these activities, as applicable, to:
1. Keep covered produce separate from excluded produce (except when covered produce and excluded produce are placed in the same container for distribution); and
2. Adequately clean and sanitize, as necessary, any food contact surfaces before using such surfaces for covered activities on covered produce.
E. A person must take all measures reasonably necessary prior to and during harvest activities to identify, and not harvest, covered produce that is reasonably likely to be contaminated with a known or reasonably foreseeable hazard, including steps to identify and not harvest covered produce that is visibly contaminated with animal excreta. At a minimum, identifying and not harvesting covered produce that is reasonably likely to be contaminated with animal excreta or that is visibly contaminated with animal excreta requires a visual assessment of the growing area and all covered produce to be harvested, regardless of the harvest method used.
F. A person must handle harvested covered produce during covered activities in a manner that protects against contamination with known or reasonably foreseeable hazards – for example, by avoiding, to the degree practicable, contact of cut surfaces of harvested produce with soil.
G. A person must not distribute dropped covered produce. “Dropped covered produce” is covered produce that drops to the ground before harvest. Dropped covered produce does not include root crops that grow underground (such as carrots), crops that grow on the ground (such as cantaloupe), or produce that is intentionally dropped to the ground as part of harvesting (such as almonds).
H. A person must package covered produce in a manner that prevents the formation of Clostridium botulinum toxin if such toxin is a known or reasonably foreseeable hazard (such as for mushrooms).
I. A person must use food-packing material that is adequate for its intended use, which includes being:
1. Cleanable or designed for single use; and
2. Unlikely to support growth or transfer of bacteria.
a. If food-packing material is reused, adequate steps must be taken to ensure that food contact surfaces are clean, such as by cleaning food-packing containers or using a clean liner.
J. Penalties.
1. Any person who violates a provision of this section shall be imprisoned for not more than one year or fined not more than One Thousand Dollars ($1,000.00), or both.
2. Notwithstanding the provisions of paragraph (J)(1) of this section, if any person who commits such a violation after a conviction under this section has become final, or commits such a violation with the intent to defraud or mislead, such person shall be imprisoned for not more than three years or fined not more than Ten Thousand Dollars ($10,000.00), or both. ONCA 21-40, eff. Apr. 28, 2021.