CO Code § 35-28-109 (2021)
2021 Colorado Code|Title 35 - Agriculture|Article 28 - Marketing Act of 1939|§ 35-28-109. When Marketing Order Effective

  No marketing agreement or amendments thereto, directly affecting handlers, issued pursuant to this article, shall become effective unless and until the commissioner finds that such agreement has been assented to in writing by the handlers engaged in the operation covered by the marketing agreement who handle not less than fifty percent of the volume of the commodity covered thereby which is processed or distributed within the area defined in such agreement and by not less than fifty percent of the number of such handlers engaged in the operation covered by such agreement.      shall not apply to marketing orders which contain provisions for refunds of assessments as provided in section 35-28-113.5.    Except as provided in section 35-28-113 (3) and notwithstanding paragraph (a) of this subsection (2), no marketing order or amendments thereto directly affecting producers of wheat shall become effective unless or until the commissioner determines that the issuance of such order is approved and favored by at least two-thirds of the producers of wheat who participated in a referendum. For purposes of this provision, a “producer of wheat” means a person who harvested or intends to harvest in any manner in excess of fifteen acres of wheat and who is entitled to share in the proceeds of such wheat crop as owner-operator, cash tenant, standing rent or fixed rent tenant, landlord of a share tenant, share tenant, or sharecropper in the calendar year determined by the commissioner to be representative for purposes of voting approval. Wheat acreage placed in the federal soil bank program shall be regarded as wheat acreage for this purpose.    Repealed.       Any order issued pursuant to this section shall become effective in the event that, notwithstanding the refusal or failure of handlers of more than fifty percent of the volume of the commodity or product thereof covered by such order which is produced or marketed within the production or marketing area defined in such order to sign a marketing agreement relating to such commodity or product thereof, on which a hearing has been held, the commissioner of agriculture, with the approval of the governor, determines:   That the refusal or failure to sign a marketing agreement, by the handlers of more than fifty percent of the volume of the commodity or product thereof specified therein which is produced or marketed within the production or marketing area specified therein, tends to prevent the effectuation of the declared policy of this article with respect to such commodity or product; and    That the issuance of such order is the only practical means of advancing the interests of the producers of such commodity pursuant to the declared policy, and is approved or favored by at least two-thirds of the producers who participated in a referendum on the question of its approval and who, during a representative period determined by the commissioner, have been engaged, within the production area specified in such marketing agreement or order, in the production for market of the commodity specified therein, or who, during such representative period, have been engaged in the marketing area specified in such marketing agreement or order; and by producers who, during such representative period, have produced for market at least two-thirds of the volume voted of such commodity produced for market within the production area specified in such marketing agreement or order, or who, during such representative period, have produced at least two-thirds of the volume voted of such commodity sold within the marketing area specified in such marketing agreement or order.    Notwithstanding paragraph (b) of this subsection (3), approval of a marketing order affecting wheat must be approved or favored by at least two-thirds of the producers of wheat who participated in a referendum on the question of its approval. For purposes of this paragraph (c), a “producer of wheat” means a person who harvested or intends to harvest in any manner in excess of fifteen acres of wheat and who is entitled to share in the proceeds of such wheat crop as owner-operator, cash tenant, standing rent or fixed rent tenant, landlord of a share tenant, share tenant, or sharecropper in the calendar year for purposes of voting approval. Wheat acreage placed in the federal soil bank program shall be regarded as wheat acreage for this purpose.       In finding whether such order is assented to pursuant to the provisions of this article, the commissioner may consider the expression of any nonprofit agricultural cooperative marketing association which is authorized by its members to so express the approval or disapproval of the producers who are members of, or stockholders in, such nonprofit agricultural cooperative marketing association.      History. Source: L. 39: P. 201, § 8. CSA: C. 106, § 53. L. 51: Pp. 559, 560, §§ 2, 3. CRS 53: § 7-3-9 . L. 57: P. 133, § 2. L. 58: Pp. 101-103, §§ 2, 3. L. 59: P. 185, §§ 1, 2. C.R.S. 1963: § 7-3-9 . L. 77: (2)(c) added, p. 1606, § 2, effective June 2. L. 87: (2)(a) amended, p. 1288, § 2, effective April 6. L. 88: (2)(b) amended, p. 1222, § 1, effective April 13. L. 96: (2)(c) repealed, p. 1217, § 8, effective August 7.    Cross references:   For the legislative declaration contained in the 1996 act repealing subsection (2)(c), see section 1 of chapter 237, Session Laws of Colorado 1996.   ANNOTATION   Referendum is required of producers but not handlers on a marketing agreement. Shoenberg Farms, Inc. v. People ex rel. Swisher, 166 Colo. 199 , 444 P.2d 277 (1968).   The 50%; requirements of subsection (1) clearly apply only to marketing agreements, and not to marketing orders. Shoenberg Farms, Inc. v. People ex rel. Swisher, 166 Colo. 199 , 444 P.2d 277 (1968).   Additional requirements of subsection (3) apply only where there has been attempted marketing agreement which has failed to gain the requisite approval. Shoenberg Farms, Inc. v. People ex rel. Swisher, 166 Colo. 199 , 444 P.2d 277 (1968).