S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3878
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2019
                                ___________
 
 Introduced  by  M.  of  A.  ORTIZ, COOK -- read once and referred to the
   Committee on Agriculture
 
 AN ACT to amend the agriculture and markets law, in relation to  liabil-
   ity for crop contamination by genetically engineered material
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The agriculture and markets law is amended by adding a  new
 article 9-B to read as follows:
                                ARTICLE 9-B
                            LIABILITY FOR CROP
                             CONTAMINATION BY
                      GENETICALLY ENGINEERED MATERIAL
 
 SECTION 142-AAA. LIABILITY  FOR  CROP CONTAMINATION BY GENETICALLY ENGI-
                    NEERED MATERIAL.
         142-BBB. SEED CONTRACTS.
   § 142-AAA. LIABILITY FOR CROP CONTAMINATION BY GENETICALLY  ENGINEERED
 MATERIAL. 1. FOR PURPOSES OF THIS ARTICLE:
   (A)  "GENETICALLY  ENGINEERED"  MEANS ALTERED BY HUMAN MANIPULATION AT
 THE MOLECULAR OR CELLULAR LEVEL BY PROCESSES, INCLUDING RECOMBINANT  DNA
 AND RNA TECHNIQUES, CELL FUSION, MICROENCAPSULATION, MACROENCAPSULATION,
 GENE  DELETION  AND  DOUBLING,  INTRODUCTION  OF FOREIGN GENES, AND GENE
 REPOSITIONING, WHICH ARE NOT POSSIBLE UNDER NATURAL CONDITIONS.  "GENET-
 ICALLY ENGINEERED" DOES NOT  INCLUDE  PRODUCTS  ALTERED  EXCLUSIVELY  BY
 BREEDING,  CONJUGATION, FERMENTATION, HYBRIDIZATION, IN VITRO FERTILIZA-
 TION, OR TISSUE CULTURE.
   (B) "CROSS-CONTAMINATION" MEANS  ANY  TRANSFER  AND  INCORPORATION  OF
 GENETIC  MATERIAL FROM A GENETICALLY ENGINEERED CROP OR PLANT, BY CROSS-
 POLLINATION OR OTHER MEANS, INTO A NON-GENETICALLY  ENGINEERED  CROP  OR
 PLANT  OR TO WILD PLANT POPULATIONS OR THE PRESENCE OF GENETICALLY ENGI-
 NEERED SEEDS IN A LOT OR PACKAGE OF NON-GENETICALLY ENGINEERED SEEDS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08235-01-9

 A. 3878                             2
 
   (C) "MANUFACTURER" MEANS A PERSON, FIRM, OR CORPORATION WHO  PRODUCES,
 DISTRIBUTES, AND SELLS GENETICALLY ENGINEERED PLANTS, PLANTING STOCK, OR
 SEEDS.
   2. A MANUFACTURER OF GENETICALLY ENGINEERED PLANTS, PLANTING STOCK, OR
 SEEDS  SHALL  BE LIABLE TO ANY PERSON FOR ANY DAMAGES, INCLUDING REASON-
 ABLE ATTORNEY'S FEES AND OTHER LITIGATION COSTS, AND TO  THE  STATE  FOR
 NATURAL  RESOURCES DAMAGES AND COSTS OF RESTORATION, DUE TO CROSS-CONTA-
 MINATION CAUSED BY THE MANUFACTURER'S PRODUCTS. SUCH LIABILITY TO  FARM-
 ERS SHALL INCLUDE BUT NOT BE LIMITED TO:
   (A)  LOSS  OF  ANY  PRICE PREMIUM WHICH WOULD HAVE ACCRUED TO A FARMER
 GROWING NON-GENETICALLY ENGINEERED PRODUCTS BY CONTRACT OR OTHER MARKET-
 ING ARRANGEMENT, OR WHICH WOULD HAVE BEEN OTHERWISE REASONABLY AVAILABLE
 TO THE FARMER THROUGH ORDINARY COMMERCIAL CHANNELS;
   (B) ANY JUDGMENT, CHARGE, OR PENALTY  FOR  WHICH  THE  FARMER  GROWING
 NON-GENETICALLY ENGINEERED PRODUCTS IS LIABLE DUE TO BREACH OF CONTRACT,
 INCLUDING  LOSS  OF ORGANIC CERTIFICATION, FOR FAILURE TO DELIVER A CROP
 FREE OF GENETICALLY ENGINEERED MATERIAL OR FOR DELIVERING A CROP EXCEED-
 ING ANY CONTRACTUALLY AGREED TOLERANCES FOR THE PRESENCE OF  GENETICALLY
 ENGINEERED MATERIAL;
   (C)  ANY  ADDITIONAL  TRANSPORTATION,  STORAGE,  HANDLING,  OR RELATED
 CHARGES OR COSTS INCURRED  BY  THE  FARMER  THAT  WOULD  NOT  HAVE  BEEN
 INCURRED IN THE ABSENCE OF CROSS-CONTAMINATION;
   (D) MARKET PRICE REDUCTIONS INCURRED BY FARMERS RESULTING FROM LOSS OF
 CROP EXPORTS, INCLUDING FOREIGN AND DOMESTIC MARKETS; AND
   (E) A FARMER'S LOSS OF LIVELIHOOD OR REPUTATION CAUSED BY CROSS-CONTA-
 MINATION.
   A FARMER WHO IS NOT IN BREACH OF A CONTRACT FOR THE PURCHASE OR USE OF
 GENETICALLY  ENGINEERED PLANTS, PLANTING STOCK, OR SEEDS AND UNKNOWINGLY
 COMES INTO POSSESSION OR USES SUCH PLANTS, PLANTING STOCK, OR SEEDS AS A
 RESULT OF NATURAL  REPRODUCTION,  CROSS-CONTAMINATION,  OR  OTHER  MEANS
 SHALL NOT BE LIABLE UNDER THIS SUBDIVISION FOR ANY DAMAGES CAUSED BY THE
 USE  OF  SUCH  PLANTS,  PLANTING  STOCK, OR SEEDS, INCLUDING DAMAGES FOR
 PATENT INFRINGEMENT.
   A MANUFACTURER SHALL HAVE AN AFFIRMATIVE DEFENSE  TO  LIABILITY  UNDER
 THIS SUBDIVISION IF: A FARMER OR OTHER THIRD PARTY ACTED IN GROSS NEGLI-
 GENCE  TO  CAUSE THE RELEASE OF THE GENETICALLY ENGINEERED MATERIAL THAT
 RESULTED IN CROSS-CONTAMINATION; THE FARMER HAD RECEIVED  AND  SIGNED  A
 CONTRACT  WITH THE MANUFACTURER; THE FARMER HAD RECEIVED WRITTEN MATERI-
 ALS FROM THE MANUFACTURER EXPLAINING HOW  TO  PLANT  AND  CULTIVATE  THE
 GENETICALLY  ENGINEERED  PLANTS;  AND  BY  FOLLOWING  THE MANUFACTURER'S
 CONTRACT AND INSTRUCTIONS THE  FARMER  WOULD  NOT  HAVE  CAUSED  DAMAGES
 THROUGH THE USE OF SUCH PLANTS, PLANTING STOCK OR SEEDS; OR A SEED SELL-
 ER  OR  DISTRIBUTOR,  OTHER THAN THE MANUFACTURER, ACTED IN GROSS NEGLI-
 GENCE TO CAUSE THE PRESENCE OF THE MANUFACTURER'S GENETICALLY ENGINEERED
 SEEDS IN A LOT OR PACKAGE OF SEEDS THAT WERE SOLD TO A  FARMER  AS  NON-
 GENETICALLY ENGINEERED SEEDS.
   THE  PROVISIONS OF THIS SUBDIVISION SHALL NOT LIMIT THE LIABILITY OF A
 MANUFACTURER UNDER ANY CAUSE OF ACTION NOT BASED UPON THIS  SUBDIVISION.
 THE  PROVISIONS  OF  THIS SUBDIVISION SHALL NOT BE SUBJECT TO WAIVER, BY
 AGREEMENT, OR OTHERWISE.
   § 142-BBB. SEED CONTRACTS. A SEED CONTRACT FOR THE PURCHASE  OF  SEEDS
 OR  PLANTING STOCK IN NEW YORK MUST BE GOVERNED BY THE LAWS OF NEW YORK.
 IF SUCH A CONTRACT EXECUTED IN NEW YORK PURPORTS TO WAIVE THE PROVISIONS
 OF THIS SECTION, TO CHOOSE THE LAWS OF ANOTHER  JURISDICTION  TO  GOVERN
 THE  CONTRACT  OR TO CHOOSE A FORUM FOR ADJUDICATION OF DISPUTES ARISING

 A. 3878                             3
 
 OUT OF THE CONTRACT THAT WOULD NOT OTHERWISE HAVE JURISDICTION OVER  THE
 PARTIES TO THE CONTRACT, SUCH PROVISIONS ARE VOID AND UNENFORCEABLE.
   §  2.  Severability.  If any clause, sentence, subdivision, paragraph,
 section or part of this act is adjudged by any court of competent juris-
 diction to be invalid, such judgment shall not affect, impair or invali-
 date the remainder thereof, but shall be confined in  its  operation  to
 the  clause,  sentence,  subdivision, paragraph, section or part thereof
 directly involved in the controversy in which such judgment  shall  have
 been rendered.
   § 3. This act shall take effect on the one hundred twentieth day after
 it shall have become a law.