TDA Changes GO TEXAN Certification for Wine

The GO TEXAN Certification for wine has been stated that the GO TEXAN mark could be applied to wine which was produced or processed in Texas. This was confusing to some consumers so a rule change will be made by the Texas Department of Agriculture (TDA). TDA will publish the following rule proposal in the Texas Register to amend the Texas Administrative Code on Friday, June 13.

The Texas Department of Agriculture (department) proposes amendments to Title 4, Part 1, Chapter 17, Subchapter C, <**>17.51, 17.52, 17.53, and 17.55, relating to the department’s GO TEXAN Certification Mark. The amendments to <**>17.51-17.53 and 17.55 are proposed to clarify use of the GO TEXAN certification mark (“certification mark”) by GO TEXAN program licensees. The amendment to <*>17.51 adds a definition for “GO TEXAN program”. The amendments to <*>17.52 provide requirements for use of the certification mark; the amendments also provide specific requirements regarding use of the certification mark by wine producers. The amendments to <*>17.53 clarify the current rule, relating to action on application for use of the certification mark. The amendment to <*>17.55 adds responsibility for compliance with all requirements for use of the GO TEXAN certification mark.

The amendments are the result of extensive public comment following a petition for the Department to restrict GO TEXAN wine marketing efforts to wine made entirely from Texas grapes. That comment process yielded significant comments for and against such a restriction. This rule establishes a new GO TEXAN mark usage requirement for wine products. Over a 12-month period following the adoption of the rule, the department will measure success of the new requirements toward increased Texas grape value, decreased consumer confusion regarding what the GO TEXAN mark represents, and increased consumption of wines produced from Texas grapes. This rule, if adopted, would not change the criteria for eligibility to be a GO TEXAN member and would not change how members continue to use the GO TEXAN mark on general marketing materials. When using the GO TEXAN mark on wine product, the rule would restrict GO TEXAN members to use the GO TEXAN mark only on wine products for which at least 75 percent of the grapes used are Texas-grown. This minimum percentage is based on other standard federal and industry-recognized thresholds for other origin requirements used for – such as for federally-approved appellation of origin label designations.

Bryan Daniel, Chief Administrator for Trade and Business Development, has determined that for the first five years the amended sections are in effect, there will be no fiscal implications for state government as a result of administering or enforcing sections amended in Subchapter C. There will be no fiscal implications for local government.

Mr. Daniel has also determined that for each year of the first five years the proposed amended sections are in effect, the public benefit anticipated as a result of enforcing the amended sections will be to enhance and ensure the integrity of the GO TEXAN Program. There will be no increased costs to individuals and businesses as a result of the amended sections as set out in this proposal.

Comments on the proposal may be submitted to Bryan Daniel, Chief Administrator for Trade and Business Development, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The amendments are proposed pursuant to the Texas Agriculture Code, <*>12.0175, which provides the department with authority to establish programs by rule to promote and market agricultural products and other products grown, processed, or produced in the state, and charge a

membership fee, as provided by department rule, for each participant in a program, and adopt

rules to administer a program established under <*>12.0175.

The code affected by the proposal is the Texas Agriculture Code, Chapter 12.

<*>17.51 Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. For purposes of this subchapter, the department shall have the sole discretion to determine whether a product meets the qualifications defined in this section. (1)-(8) (No change.)

<etb>(9) GO TEXAN Program—Texas Department of Agriculture’s promotion of Texas-made, grown, manufactured or processed products, as well as services and communities.<et>

(910) GO TEXAN Restaurant Program–A program, as defined in §17.60 of this title (relating to GO TEXAN Restaurant Program) established by the department to allow Texas restaurants to participate in the GO TEXAN marketing program.

(1011) Horticulture products–Nursery, floral and greenhouse plants or plant products produced in Texas from seeds, rootings, cuttings, tissue cultures, seedlings or other propagation materials. Non-Texas plants being produced for such a period during which they are transplanted or increased in plant size and volume of container. Texas and non-Texas produced plant-based horticulture products processed in Texas.

(1112) Hunting–The capturing or harvesting of wildlife.

(1213) Livestock feed, feed supplements and pet food–Agricultural products produced or processed in Texas for animal consumption.

(1314) Mobile food establishment–A vehicle mounted food establishment that is readily moveable that meets the requirements set forth in Title 25, Part 1, Chapter 229, Subchapter K, §229.169 of the Texas Administrative Code (relating to Mobile Food Establishments).

(1415) Natural fibers–Fibers which have been produced from Texas crops or shorn from Texas livestock, and which are used in textiles, apparel, and other goods. The term “natural fibers” also includes leather made from the hides of animals and reptiles.

(1516) Natural woods–Forestry products produced from Texas hardwood and softwood timber and may include, but not be limited to, furniture, home furnishings, building construction materials, pulp and paper.

(1617) Other Products–

(A) Any product produced in Texas which is not a Texas agricultural product, as defined in paragraph (24) of this section, but is:

(i) produced, manufactured, constructed or created within the state; or

(ii) is processed within the state such that it has been altered by a mechanical or physical value-added procedure in Texas to change or add to its physical characteristics; and

(iii) such product enhances the GO TEXAN program;

(B) Products described in subparagraph (A) of this paragraph which are produced in Texas, but processed outside of Texas do not meet GO TEXAN program requirements, unless facilities for processing are not reasonably available in Texas.

(C) For purposes of this subchapter, the department shall have the sole discretion to determine whether a product qualifies as being an “other product” or processed other product and shall have the sole discretion to determine whether a product enhances the GO TEXAN program.

(1718) Processed food product–Non-Texas agricultural food product which has undergone a value-added procedure in Texas to change or add to its physical characteristics, including, but not limited to, cooking, baking, heating, drying, mixing, grinding, churning, separating, extracting, cutting, fermenting, distilling, eviscerating, preserving, or dehydrating.

(1819) Processed natural fiber or natural wood product–Non-Texas raw, natural fiber or natural wood which has undergone mechanical or physical changes in Texas resulting in a finished, distinct product.

(1920) Produced in Texas–An agricultural product is produced in Texas if:

(A) the agricultural product is grown, raised, nurtured, sown, or cultivated within the state; or

(B) the agricultural product has been altered by a mechanical or physical value-added procedure in Texas to change or add to its physical characteristics.

(C) Products produced in Texas, but processed out of Texas do not meet GO TEXAN program requirements, unless facilities for processing are not reasonably available in Texas.

(2021) Producer–Any person who:

(A) produces agricultural product(s) grown, raised, nurtured, sown, or cultivated in the State of Texas;

(B) produces Texas processed agricultural product(s); or

(C) produces Texas product(s) that is/are not processed outside of Texas, unless facilities for processing are not reasonably available in Texas.

(2122) Registrant–A person in good standing with the department who is authorized to use the GO TEXAN certification mark for the purpose of verifying their product or service as grown, produced, manufactured or provided in Texas.

(2223) Restaurant–An operation that stores, prepares, serves, vends, or otherwise provides food for human consumption, such as a restaurant, satellite or catered feeding location; or mobile food establishment. Restaurant registrants do not include:

(A) any establishment that offers only prepackaged foods;

(B) a produce stand that only offers whole, uncut fresh fruits and vegetables;

(D) a kitchen in a private home if prepared for sale or service at a function such as a religious or charitable organization’s bake sale; or

(E) a bed and breakfast.

(2324) Texas processed agricultural product–Non-Texas agricultural product, excluding processed food product and processed natural wood and natural fiber product, which has undergone a value added procedure in Texas that changes or adds to its physical characteristics.

(2425) Texas agricultural product–An agricultural, apicultural horticultural, silvicultural, viticultural, or vegetable product, either in its natural or processed state, that has been produced, processed, or otherwise had value added to the product in this state, including:

(A) equine species;

(B) feed for use by livestock or poultry;

(D) livestock, a livestock product, or a livestock by-product;

(E) planting seed;

(F) poultry, a poultry product, or a poultry by-product; or

(G) wildlife processed for food or by-products.

<*>17.52 Application for Registration to Use the GO TEXAN Certification Mark

(a) (No change.)

(b) Unless permission is otherwise granted by the department, the GO TEXAN certification mark may only be used by registrants in accordance with these rules and guidance which may be

prescribed by the department from time to time to certify and promote the following Texas products:

(1) agricultural products produced in Texas;

(2) agricultural food products processed in Texas, regardless of origin, and unprocessed agricultural food products grown in Texas. A food service company, excluding restaurants, is not eligible for membership unless it processes a packaged product for resale, in which case, the mark may only be used to promote the specific program-eligible products. Food service companies may not use the mark to promote the approved business or its services in a manner that would mislead consumers to believe it was a GO TEXAN member;

(3) wine which is produced or processed in Texas, as defined in §17.51 of this chapter (relating to Definitions);. Wine meeting this standard, but consisting of less than 75 percent Texas-grown fruit, may not use the GO TEXAN certification mark on the label, bottle or cork. GO TEXAN members may use the mark on their general marketing materials and participate in GO TEXAN promotions.

(4)-(19) (No Change)

(c) Applications submitted under this section shall be made in writing on a form prescribed by the department. Application forms shall be submitted to may be obtained by contacting the Texas Department of Agriculture Marketing and International Trade Section at P.O. Box 12076, Austin, Texas 78711, an application may be requested by calling phone (512) 463-7624.

(d) Applications shall be submitted to: Marketing and International Trade Section, Texas Department of Agriculture, P.O. Box 12076, Austin, Texas 78711; or electronically, as prescribed by the department.

(ed) Applications will not be processed without the required registration fee.

(fe) Upon approval of the application, the department shall provide the registrant a certificate of registration, which is valid for one year and shall expire on the last day of the month corresponding to the license anniversary date. The department shall also provide copies of the mark, suitable for reproduction, upon request of the registrant.

(gf) Other than the authorized use of the mark, no registrant shall use any statement of affiliation or endorsement by the State of Texas or the department in the selling, advertising, marketing, packaging, or other commercial handling of GO TEXAN products and services, or operation of GO TEXAN restaurants.

(hg) Registrants shall indemnify and hold harmless the commissioner, the State of Texas, and the department for any claims, losses, or damages arising out of or in connection with that person’s advertising, marketing, packaging, manufacture, or other commercial handling of GO TEXAN products and services, or the operation of restaurants.

(ih) Any permission under the certificate of registration granted to a registrant to use the mark shall be nonexclusive and nontransferable for the products listed in the application.

(ji) Registrants shall do nothing inconsistent with the ownership of the mark in the department, and all use of the mark by any registrant shall inure to the benefit of and be on behalf of the department. Further the registrants shall not have any right, title, or interest in the mark, other than the right to use the mark as authorized in accordance with the certificate of registration. Registrants waive the right to attack the department’s ownership, use of and permissions granted by the department associated with the mark.

(kj) The nature and quality of the goods sold by registrants in connection with the mark shall conform to any standards which are set by the department. Registrants shall cooperate with the department by permitting reasonable inspection of the registrant’s operation and promptly

supplying the department with specimens of use of the mark upon request. Registrants shall not use the mark on goods sold or marketed as products from another country or state, or as products from a city or region outside of Texas, unless prior written authorization is received from the department.

(lk) Registrants shall comply with all applicable laws and regulations and obtain all appropriate governmental approval pertaining to the selling, advertising, marketing, packaging, manufacturing, or other commercial handling of the products or operation of restaurants covered by the certification of registration.

(ml) Registrants shall use the mark only in the form and manner, and with appropriate legends, as prescribed by the department.

(nm) Registrant is responsible for strict compliance with current departmental guidance and regulations. Guidance is available on the GO TEXAN website (gotexan.org) and as provided by the department on occasion. Failure to meet all use requirements will result in the suspension or termination of use of the mark and GO TEXAN program license.

(n)The department shall have the sole right and discretion to bring infringement or unfair competition proceedings involving the GO TEXAN certification mark. Failure to bring proceedings does not constitute a waiver of the department’s rights and does not preclude all other available legal actions.

(o) The department may shall consider in its evaluation of an applicant or registrant any information regarding an applicant or member that could impair the department’s efforts to promote the development of markets for Texas agriculture and other products. This includes information thatwhether the product may not enhance the integrity and positive image of the program, including, but not limited to, a review of the applicant’s criminal background, as authorized by applicable laws and regulations. Failure to promote the GO TEXAN program or compromising the image and integrity of the program will result in the denial or termination of the application or membership.

<*>17.53 Action on Application (a) (No change.) (b) Denial. An application or renewal of registration or the GO TEXAN program and associatedto use of the GO TEXAN certification mark may be denied if: (1)-(6) (No change.) (c)-(d) (No change.)

<*>17.55 Registration and Use of the GO TEXAN Certification Mark

(a) Membership. An annual fee for registration in the GO TEXAN program shall be paid to the department. Applicants may select from three different levels of membership. Annual fees and benefits for each level of membership are described in paragraphs (1) – (3) of this subsection. The department may, in its sole discretion, from time to time, revise or update the benefits for each level of membership. All benefits are subject to continued authorization and appropriation of the program by the Texas Legislature.

(1) Tier 1 – $100. Benefits for this membership level include licensed use of the GO TEXAN certification mark in strict accordance with <*>17.52 of this subchapter (relating to Application for Registration to Use the GO TEXAN Certification Mark), and listing in GO TEXAN program databases.

(2) – (4) (No Change)

(b) (No change)

(1) – (2) (No Changes)

(3) Registrant’s proposed use shall be subject to review and acceptance by the Department. It is the responsibility of the registrant to ensure proper compliance with current departmental guidance regarding the use of the mark which may be issued from time to time. Failure to do so shall result in the suspension and/or termination of the GO TEXAN registration.

(4) – (5) (No Change.)

(6) As required by the department, registrant shall affix on all items utilized in the authorized use, appropriate legal notices, as follows: “GO TEXAN is a certification mark of, and is used with permission from the Texas Department of Agriculture” in addition to use of the registration symbol in conjunction with the mark.

(7) – (8) (No change.)

(d) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Filed with the Office of the Secretary of State on June 2, 2014.

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture