Senate Bill S3359A

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3359--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 17, 2011
                               ___________

Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Agriculture -- recommitted
  to the Committee on Agriculture in accordance with Senate Rule 6, sec.
  8 -- committee discharged, bill amended, ordered reprinted as  amended
  and recommitted to said committee

AN  ACT to amend the agriculture and markets law, in relation to the use
  of an official state of New York quality trademark for milk  and  milk
  products

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 254 of the agriculture and markets law  is  amended
by adding a new subdivision (e) to read as follows:
  (E) THE COMMISSIONER SHALL, BEFORE DECEMBER THIRTY-FIRST, TWO THOUSAND
TWELVE,  APPLY  TO  THE  UNITED  STATES  PATENT AND TRADEMARK OFFICE FOR
REGISTRATION FOR A CERTIFICATION TRADEMARK OR TRADEMARKS CONSISTING OF A
SEAL OF THE STATE, THE WORDS "NEW YORK" AND ANY OTHER APPROPRIATE  IDEN-
TIFYING  WORDS. ANY CERTIFICATION TRADEMARK OBTAINED MAY ONLY BE USED ON
MILK AND MILK PRODUCTS WITHIN THE STATE WHICH ARE IN COMPLIANCE WITH THE
PROVISIONS OF SECTION TWO HUNDRED FIFTY-SEVEN-B OF THIS ARTICLE.
  S 2. The agriculture and markets  law  is  amended  by  adding  a  new
section 257-b to read as follows:
  S  257-B.  USE OF THE OFFICIAL STATE OF NEW YORK QUALITY TRADEMARK FOR
MILK AND MILK PRODUCTS.
  1. FOR THE PURPOSE OF THIS SECTION, AND UNLESS THE  CONTEXT  OTHERWISE
INDICATES, THE FOLLOWING WORDS SHALL HAVE THE FOLLOWING MEANINGS:
  A.  "APPLICANT"  MEANS A PERSON WHO OWNS OR OPERATES A MILK PLANT, WHO
HAS APPLIED FOR AN INITIAL LICENSE TO USE THE STATE OF NEW YORK  QUALITY
TRADEMARK FOR MILK OR MILK PRODUCTS AND A LICENSED USER SEEKING TO RENEW
A LICENSE.
  B.  "LICENSED USER" MEANS AN OWNER OR OPERATOR OF A MILK PLANT WHO HAS
APPLIED FOR AND BEEN ISSUED A LICENSE GRANTING  PERMISSION  TO  USE  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01075-02-2
              

S. 3359--A                          2

OFFICIAL  QUALITY  TRADEMARK  ON PACKAGES OR ADVERTISEMENT IN COMPLIANCE
WITH THIS SECTION.
  C.  "MILK PLANT" MEANS ANY PLACE, PREMISES OR ESTABLISHMENT WHERE MILK
OR MILK PRODUCTS ARE COLLECTED, HANDLED, PROCESSED, STORED, PASTEURIZED,
ASEPTICALLY PROCESSED, BOTTLED OR OTHERWISE PREPARED FOR DISTRIBUTION.
  D. "PRODUCED WITHIN THE STATE" MEANS EIGHTY PERCENT OF THE MILK IN ANY
PACKAGE MUST HAVE ACTUALLY BEEN PRODUCED WITHIN THE STATE OF  NEW  YORK.
FOR  ANY GIVEN PACKAGE, THE PERCENTAGE OF MILK PRODUCED WITHIN THE STATE
WILL BE DEEMED TO BE THAT PERCENTAGE OF THE LICENSED  USER'S  MILK  USED
FOR  PROCESSING  WHICH  WAS ACTUALLY PRODUCED WITHIN NEW YORK DURING THE
CALENDAR MONTH.
  E. "RECOMBINANT BOVINE  SOMATOTROPIN"  OR  RBST  MEANS  THE  SYNTHETIC
VERSION OF THE NATURALLY-OCCURRING HORMONE, BOVINE SOMATOTROPIN OR RBST,
PRODUCED THROUGH RECOMBINANT DNA TECHNOLOGY.
  F.  "STATE  OF  NEW YORK QUALITY TRADEMARK" MEANS THE OFFICIAL QUALITY
TRADEMARK ADOPTED PURSUANT TO SECTION TWO HUNDRED FIFTY-FOUR    OF  THIS
ARTICLE.
  2. THE GRADE "A" PASTEURIZED MILK ORDINANCE, 1993 REVISION, AS PROMUL-
GATED  BY THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES AND,
ALTERNATIVELY, THE STANDARDS SET FORTH IN THIS  ARTICLE  GOVERNING  MILK
AND  MILK  PRODUCTS ARE HEREBY ADOPTED AS THE OFFICIAL STANDARDS FOR NEW
YORK GRADE A MILK.
  3. A. THE DEPARTMENT SHALL ADOPT  RULES  PERMITTING  THE  USE  OF  THE
CERTIFICATION  TRADEMARK  PROVIDED  FOR  IN THIS SECTION ON MILK OR MILK
PRODUCTS. THE INITIAL RULES SHALL INCLUDE LIMITATIONS  RELATING  TO  THE
USE  OF  MILK  FROM  COWS THAT HAVE BEEN TREATED WITH RECOMBINANT BOVINE
SOMATOTROPIN, REFERRED TO IN THIS SECTION AS  "RBST."  THE  RULES  SHALL
INCLUDE  A  REQUIREMENT THAT THE DEPARTMENT RECEIVE WRITTEN CONSENT FROM
PRODUCERS TO DRAW BLOOD FROM THEIR MILKING HERD, EXAMINE HISTORICAL MILK
PRODUCTION RECORDS, INSPECT MEDICINE STORAGE PLACES  AND  PERFORM  OTHER
INSPECTIONS REASONABLY NECESSARY TO VERIFY COMPLIANCE WITH THE TRADEMARK
CRITERIA.
  B.  IF  THE  CRITERIA  FOR  USE OF THE CERTIFICATION TRADEMARK INCLUDE
ABSENCE OF THE USE OF RBST, A MILK PRODUCER IN THIS STATE WHO SELLS MILK
TO A MILK PLANT THAT USES THE TRADEMARK  MUST  NOTIFY  THAT  MILK  PLANT
BEFORE  USING RBST WITHIN THE MILKING HERD OF THE PRODUCER'S DAIRY FARM.
NOTIFICATION TO THE MILK PLANT MUST BE MADE  AT  LEAST  FORTY-FIVE  DAYS
BEFORE  USING RBST. NOTIFICATION MUST BE MADE BY CERTIFIED MAIL AND SENT
TO THE MILK PLANT'S EMPLOYEE RESPONSIBLE FOR  MILK  PROCUREMENT  AT  THE
PLANT  LOCATION  WHERE  THE  MILK  IS  PROCESSED.  FOR  PURPOSES OF THIS
SECTION, "POSSESSION OF RBST" MEANS USE.
  C. IF A MILK PRODUCER FAILS TO GIVE THE MILK PLANT THE NOTICE REQUIRED
IN PARAGRAPH B OF THIS SUBDIVISION, THE MILK PLANT IS  NOT  REQUIRED  TO
COMPLY  WITH  ANY  APPLICABLE  NOTICE  REQUIREMENTS  BEFORE  REFUSING TO
CONTINUE TO PURCHASE MILK UNDER ANY CONTRACT WITH THAT MILK PRODUCER.
  4. AN APPLICANT MUST MEET THE CRITERIA OUTLINED IN THIS SUBDIVISION IN
ORDER TO OBTAIN A STATE OF NEW YORK QUALITY TRADEMARK LICENSE  FOR  MILK
OR MILK PRODUCTS:
  A.  AN APPLICANT MUST OBTAIN AN ORIGINAL AFFIDAVIT EXECUTED WITHIN THE
PRECEDING SIX MONTHS FROM EACH MILK PRODUCER AND OTHER MILK PLANTS  FROM
WHOM  THE  APPLICANT  REGULARLY PURCHASES OR INTENDS TO PURCHASE MILK OR
MILK PRODUCTS. ALL AFFIDAVITS MUST BE IN COMPLIANCE  WITH  THE  REQUIRE-
MENTS OF SUBDIVISION SEVEN OF THIS SECTION.
  B.  AN APPLICANT MUST PROVIDE THE DEPARTMENT WITH AN AFFIDAVIT SETTING
FORTH THE CURRENT LIST OF MILK PRODUCERS AND OTHER MILK PLANTS FROM WHOM
THE APPLICANT REGULARLY PURCHASES OR INTENDS TO  PURCHASE  MILK  STATING

S. 3359--A                          3

THAT  THE  MILK  PRODUCERS  AND MILK PLANTS HAVE FURNISHED AFFIDAVITS IN
COMPLIANCE WITH SUBDIVISION SEVEN OF THIS SECTION. AN APPLICANT WHO OWNS
OR OPERATES A DAIRY FARM WHERE SALES OF MILK PRODUCED ON  THE  FARM  ARE
MADE  DIRECTLY  TO  CONSUMERS  SHALL ALSO PROVIDE THE DEPARTMENT WITH AN
AFFIDAVIT IN THE FORM PRESCRIBED FOR PRODUCERS BY SUBDIVISION  SEVEN  OF
THIS  SECTION. THE AFFIDAVIT OF AN APPLICANT SHALL ALSO CONTAIN A STATE-
MENT THAT THE APPLICANT BELIEVES THAT THE MILK THE APPLICANT HAS OR WILL
PURCHASE OR PRODUCE IS FROM COWS NOT TREATED WITH RBST.
  C. AN APPLICANT WHO HAS PREVIOUSLY HELD A LICENSE  OR  IS  A  LICENSED
USER  WHO  IS  APPLYING  FOR  A RENEWAL OF AN EXISTING LICENSE MUST HAVE
SUBSTANTIALLY COMPLIED WITH THE REQUIREMENTS OF THIS SECTION WHILE EXER-
CISING THE PRIVILEGES OF THE LICENSE.
  D. AN APPLICANT MUST OBTAIN WRITTEN CONSENT FROM  EACH  MILK  PRODUCER
FROM  WHOM THE APPLICANT REGULARLY PURCHASES OR INTENDS TO PURCHASE MILK
OR MILK PRODUCTS ALLOWING THE DEPARTMENT TO DRAW BLOOD FROM THE  MILKING
HERD,  EXAMINE MILK PRODUCTION RECORDS, INSPECT MEDICINE STORAGE PLACES,
AND REVIEW SUCH BUSINESS RECORDS AS ARE REASONABLY NECESSARY  TO  VERIFY
COMPLIANCE WITH THIS SECTION.
  5.  A.  LICENSED  USERS MUST OBTAIN NEW AFFIDAVITS FROM MILK PRODUCERS
AND MILK PLANTS FROM WHOM MILK IS PURCHASED ON AN ANNUAL BASIS.
  B. LICENSED USERS SHALL FILE SUPPLEMENTAL AFFIDAVITS WITH THE  DEPART-
MENT  SHOWING  THE  ADDITION  OF  ANY  MILK PRODUCERS OR MILK PLANTS NOT
MENTIONED IN THE AFFIDAVIT FURNISHED UNDER PARAGRAPH  B  OF  SUBDIVISION
FOUR  OF  THIS  SECTION,  AND SHALL OBTAIN THE APPLICABLE AFFIDAVITS AND
CONSENTS UNDER SUBDIVISION SEVEN OF THIS SECTION AS SOON AS  PRACTICABLE
FOLLOWING  THE  FORMATION  OF  ANY  CONTRACT  OR  ARRANGEMENT  FOR  MILK
PURCHASES WITH ANY NEW MILK PRODUCER OR MILK PLANT.
  C. ALL AFFIDAVITS REQUIRED TO BE OBTAINED FROM MILK PRODUCERS AND MILK
PLANTS MUST BE IN COMPLIANCE WITH SUBDIVISION SEVEN OF THIS SECTION  AND
BE  MAINTAINED  ON FILE AND MADE AVAILABLE FOR INSPECTION BY THE DEPART-
MENT AT ALL REASONABLE TIMES.
  D. A LICENSED USER MUST OBTAIN WRITTEN CONSENT FROM EACH MILK PRODUCER
FROM WHOM THE LICENSED USER PURCHASES OR INTENDS TO  PURCHASE  MILK,  OR
MILK  PRODUCTS  ALLOWING  THE  DEPARTMENT TO DRAW BLOOD FROM THE MILKING
HERD, EXAMINE MILK PRODUCTION RECORDS, INSPECT MEDICINE STORAGE  PLACES,
AND  REVIEW  SUCH BUSINESS RECORDS AS ARE REASONABLY NECESSARY TO VERIFY
COMPLIANCE WITH THIS RULE. LICENSED USERS MUST RETAIN AND MAKE THE WRIT-
TEN CONSENTS AVAILABLE TO THE DEPARTMENT AT ALL REASONABLE TIMES.
  E. IN DISPLAYING OR ADVERTISING THE STATE OF NEW YORK  QUALITY  TRADE-
MARK  AND  MAKING  ANY STATEMENTS, CLAIMS OR EXPLANATIONS WITH REGARD TO
THE ABSENCE OF RBST, LICENSED USERS MUST FOLLOW  ANY  AND  ALL  LABELING
REGULATIONS  OR  OTHER ENFORCEABLE GUIDELINES AS PRESCRIBED FROM TIME TO
TIME BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION. ANY VIOLATION OF
THIS SECTION MAY RESULT IN SANCTIONS AND  SUSPENSION  OR  REVOCATION  OF
SAID LICENSE.
  F.  LICENSED  USERS  MUST DEMONSTRATE COMPLIANCE AT ALL TIMES WITH ALL
APPLICABLE FEDERAL OR STATE LAWS AND REGULATIONS AND MILK MUST MEET  THE
STANDARDS ESTABLISHED BY THIS CHAPTER FOR NEW YORK GRADE A MILK.
  G.  LICENSED USERS MAY AFFIX THE TRADEMARK ONLY TO PACKAGES CONTAINING
MILK PRODUCED WITHIN THE STATE.
  6. THE COMMISSIONER, OR A DULY AUTHORIZED AGENT OF  THE  COMMISSIONER,
MAY PERFORM INSPECTIONS AS AUTHORIZED BY THE WRITTEN CONSENTS WHICH MUST
BE OBTAINED UNDER THESE RULES.
  7.  LICENSED USERS SHALL FILE AFFIDAVITS REQUIRED IN SUBDIVISIONS FOUR
AND FIVE OF THIS SECTION ON FORMS AS PRESCRIBED  AND  FURNISHED  BY  THE
COMMISSIONER.

S. 3359--A                          4

  A.  IN  THE  CASE OF AFFIDAVITS SUPPLIED BY MILK PRODUCERS TO LICENSED
USERS, THE AFFIDAVITS SHALL CONTAIN, AT A MINIMUM,  THE  FULL  NAME  AND
ADDRESS OF THE MILK PRODUCER AND A SWORN STATEMENT STATING THAT THE MILK
PRODUCER  HAS  NOT  USED  RECOMBINANT  BOVINE SOMATOTROPIN (RBST) IN THE
PREVIOUS  SIXTY  DAYS, DOES NOT POSSESS, AND DOES NOT INTEND TO USE RBST
DURING THE UPCOMING YEAR. THE AFFIDAVIT OF A MILK  PRODUCER  SHALL  ALSO
CONTAIN  THE CONSENT REQUIRED BY PARAGRAPH B OF SUBDIVISION FIVE OF THIS
SECTION AND A STATEMENT ACKNOWLEDGING THAT:
  (I) A MILK PRODUCER IN THIS STATE WHO SELLS MILK TO A MILK  PLANT  WHO
USES  THE TRADEMARK MUST NOTIFY THAT MILK PLANT BEFORE USING RBST WITHIN
THE MILKING HERD OF THE PRODUCER'S DAIRY FARM;
  (II) NOTIFICATION TO THE DEALER MUST BE MADE AT LEAST FORTY-FIVE  DAYS
BEFORE USING RBST; AND
  (III) NOTIFICATION MUST BE MADE BY CERTIFIED MAIL AND SENT TO THE MILK
PLANT'S  EMPLOYEE RESPONSIBLE FOR MILK PROCUREMENT AT THE PLANT LOCATION
WHERE THE MILK IS PROCESSED.
  B. IN THE CASE OF AFFIDAVITS SUPPLIED BY OWNERS OR OPERATORS  OF  MILK
PLANTS  TO  LICENSED  USERS, THE AFFIDAVITS SHALL CONTAIN, AT A MINIMUM,
THE FULL NAME AND ADDRESS OF THE MILK PLANT AND A SWORN STATEMENT  STAT-
ING  THAT  THE  MILK  PLANT  POSSESSES,  AND  WILL MAKE AVAILABLE TO THE
DEPARTMENT, AFFIDAVITS AND CONSENTS IN COMPLIANCE WITH THIS  SUBDIVISION
FROM  ALL PRODUCERS WHOSE MILK OR MILK PRODUCTS ARE SUPPLIED BY THE MILK
PLANT TO THE LICENSED USER.
  8. THE COMMISSIONER MAY SUSPEND OR REVOKE LICENSES ISSUED  UNDER  THIS
ARTICLE  FOR VIOLATION OF ANY PROVISIONS OF THIS SECTION. THE FAILURE TO
COMPLY WITH THE REQUIREMENTS OF THIS SECTION SHALL BE  SUFFICIENT  CAUSE
FOR THE SUSPENSION OR REVOCATION OF THE LICENSE.
  9.  RECORDS AND AFFIDAVITS REQUIRED TO BE MAINTAINED BY LICENSED USERS
MAY BE DISCARDED AFTER THREE YEARS.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.