Header:
CALIFORNIA CODE ANNOTATED
FOOD AND AGRICULTURAL CODE
Division 15. Milk and Milk Products Act of 1947
Part 2. Milk and Cream
Chapter 2. Market Milk and Cream
Article 7. Certified Milk
Date:
08/31/2009
Document:
Cal Food & Agr Code § 35928 (2010)
§ 35928. Prohibited use of raw milk or raw certified milk; Judicial review
(a) When the director, any health officer acting as an agent of the director, or a milk inspection officer acting as an agent of the director having jurisdiction, determines that the oral ingestion by a human being of any raw milk or certified raw milk supply has caused disease in a human being, he shall prohibit the use, sale, or disposal of such milk, except by a method approved by the director, until such cause has been corrected or eliminated. Application may be made by the director or any such officer to the superior court of the county where the supply is produced or stored in order to obtain an injunction prohibiting the use, sale, or disposal of such milk. If the court determines that it is a reasonable medical probability that the ingestion by a human being of such milk supply was the proximate cause of a case of disease in such human being and that the milk supply is unsafe for human consumption, the court shall take such action as is necessary to enforce the order. When the court thereafter determines that it is a reasonable medical probability that the ingestion by a human being of such milk supply will not be the proximate cause of a case of disease in a human being and that the milk supply is safe for human consumption, such order of prohibition shall be dissolved.
(b) When the director, any health officer acting as an agent of the director, or a milk inspection officer acting as an agent of the director having jurisdiction, has good cause to believe, as a result of either a laboratory test by a laboratory certified by the department or a recognized test, on the animal or the milk from the animal or the herd, that a case of typhoid fever, salmonella infection, bacillary dysentery, diphtheria, respiratory streptococcal infection, brucellosis, or tuberculosis, is present in one or more cows or in the milk of one or more cows of any dairy herd, he shall prohibit the use, sale, or disposal of the raw milk or certified raw milk from the herd containing the diseased cow or cows, except by a method approved by the director, until such cause has been corrected or eliminated. Application may be made by the director or any such officer to the superior court of the county where the milk supply is produced or stored in order to obtain an injunction prohibiting the use, sale, or disposal of such milk. If the court determines that it is a reasonable medical probability that such disease is present in the milk of one or more cows of any dairy herd and that the milk supply is unsafe for human consumption, the court shall take such action as is necessary to enforce the order. When the court thereafter determines that it is a reasonable medical probability that such disease is no longer present on the premises of such dairy and that the milk supply is safe for human consumption, such order of prohibition shall be dissolved.
(c) When the director, any health officer acting as an agent of the director, or a milk inspection officer acting as an agent of the director, has good cause to believe, as a result of a laboratory test by a laboratory certified by the department or a recognized test, on the animal or the milk, that a raw milk or certified raw milk supply under the control of the producer of such milk supply is suspected to be the source of an infection for a communicable disease, or that a raw milk or certified raw milk supply may cause an infection of a communicable disease, he shall prohibit the use, sale, or disposal of such milk, except by a method approved by the director, until such cause has been corrected or eliminated. However, in the case of such a milk supply being under the control of either a retailer or distributor to retailers, the director or his agent may only prohibit the use, sale, or disposal of such milk in a manner used for any other market milk or milk product.
(d) Actions taken pursuant to the provisions of subdivision (c) shall in each instance be subject to judicial review under Section 1085 of the Code of Civil Procedure by the superior court of the county with jurisdiction. Such review shall be conducted for the purpose of determining if the action taken shall be sustained or dissolved. At issue in the review shall be the questions of adequate protection of the public health and safety, and the guarantee of due process of law for the persons controlling, or producer of, the raw or certified raw milk supply affected by the action. The department shall have the burden of proof to sustain the actions of the director or his agents at issue in the review.
In the event the court, after such review, finds that the action by the director shall be dissolved, the department shall bear the actual court costs incurred by the persons controlling, or producers of, the raw or certified raw milk supply, and their actual testing costs for any animal or milk tests previously ordered by the department to determine if such milk supply, which is the subject of such court action, is the source of, or may cause, an infection for a communicable disease.
As used in this subdivision, "testing costs" means the actual cost of obtaining samples to be tested, the actual cost of laboratory tests, and the actual cost for extra labor to confine the cattle for the purpose of testing.
(e) In addition to any procedural requirements of Section 32731, any routine inspection conducted for the purpose of taking samples of milk or inspecting any cow pursuant to subdivision (b) or (c) shall be conducted only after the issuance of an inspection warrant as provided in Title 13 (commencing with Section 1822.50) of Part 3 of the Code of Civil Procedure, unless such inspection is conducted with the knowledge of the persons controlling the milk supply or cow. In the taking of a sample of milk pursuant to subdivision (a), (b), or (c), a duplicate of any sample of raw milk or certified raw milk shall be left with the persons in control of, or producers of, such milk.
(f) The Legislature finds and declares that the state does not intend to limit or restrict the availability of certified raw milk and certified raw milk products to those persons desiring to consume such milk and such products, provided such milk and products meet standards of sanitation and wholesomeness at least equal to market milk that is grade A raw milk, as defined in Section 35891.
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