S T A T E O F N E W Y O R K
________________________________________________________________________
56
2015-2016 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2015
___________
Introduced by M. of A. DINOWITZ, GALEF, WEPRIN -- Multi-Sponsored by --
M. of A. BRENNAN, HOOPER, ORTIZ -- read once and referred to the
Committee on Consumer Affairs and Protection
AN ACT to amend the agriculture and markets law, in relation to certain
perishable foods
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 16 of the agriculture and markets law is amended by
adding a new subdivision 45 to read as follows:
45. (A) RECEIVE AND EVALUATE COMPLAINTS AND INITIATE HIS OR HER OWN
INVESTIGATIONS RELATING TO MATTERS PROVIDED IN ARTICLE TWELVE-B OF THIS
CHAPTER, RELATING TO CERTAIN PERISHABLE FOODS, AND TAKE APPROPRIATE
ACTION RELATED THERETO, INCLUDING STOP SALE ORDERS WHERE NECESSARY AND
PROPER.
(B) THE COMMISSIONER SHALL HAVE THE POWER, AFTER REASONABLE NOTICE AND
HEARING, TO DETERMINE THE REASONABLENESS OF ANY STATEMENT OR REPRESEN-
TATION AS TO THE DATE AND CONDITIONS OF STORAGE AFFIXED PURSUANT TO
ARTICLE TWELVE-B OF THIS CHAPTER.
S 2. The agriculture and markets law is amended by adding a new arti-
cle 12-B to read as follows:
ARTICLE 12-B
PERISHABLE FOODS
SECTION 156-J. STATEMENT OF LEGISLATIVE FINDINGS AND PURPOSES.
156-K. DEFINITIONS.
156-L. LABELLING REQUIREMENTS.
156-M. EXEMPTIONS.
156-N. EXCEPTIONAL CIRCUMSTANCES.
156-O. ENFORCEMENT.
156-P. RULES AND REGULATIONS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00692-01-5
A. 56 2
S 156-J. STATEMENT OF LEGISLATIVE FINDINGS AND PURPOSES. THE LEGISLA-
TURE HEREBY FINDS AND DECLARES THAT:
1. CONSUMERS CANNOT BE CERTAIN THAT FOOD OFFERED FOR SALE IS FRESH OR
THAT IT WILL REMAIN FRESH FOR A REASONABLE PERIOD OF TIME AFTER IT IS
PURCHASED. THE LEGISLATURE PARTICULARLY RECOGNIZES CONSUMER CONCERN WITH
THE FRESHNESS OF FOODS INCLUDING, BUT NOT LIMITED TO, MEAT, POULTRY,
FISH, DAIRY PRODUCTS, EGGS, FRUIT, VEGETABLES, AND BAKED GOODS.
2. THE LEGISLATURE FURTHER FINDS THAT THE FOOD INDUSTRY'S PRACTICE OF
CONTROLLING FOOD FRESHNESS THROUGH CODED DATES HAS PROVEN INADEQUATE FOR
PROTECTION OF THE PUBLIC.
3. THE LEGISLATURE DECLARES THAT A MANDATORY SYSTEM OF CLEAR AND LEGI-
BLE DATING ACCOMPANIED BY A STATEMENT OF RECOMMENDED CONDITIONS OF STOR-
AGE IS THE BEST WAY TO ASSURE CONSUMERS OF THE FRESHNESS OF THE GOODS
THAT THEY BUY IN STORES.
S 156-K. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1. "FOOD STORE" MEANS A STORE SELLING FOOD AT RETAIL, WHICH STORE IS
NOT PRIMARILY ENGAGED IN THE SALE OF FOOD FOR CONSUMPTION ON THE PREM-
ISES;
2. "PERISHABLE FOODS" MEANS AND INCLUDES (A) EGGS, GRADE AA, GRADE A,
AND GRADE B SHELL EGGS;
(B) ALL PRE-PACKAGED, FULLY OR PARTIALLY PREPARED BAKED GOODS WHICH
HAVE A MOISTURE CONTENT EXCEEDING EIGHTEEN PERCENT, WITH OR WITHOUT
ADDITIVES, KNOWN AS:
(I) BREADS, ROLLS AND BUNS AS DEFINED PURSUANT TO TITLE 21, CHAPTER 1,
PART 136.110 OF THE CODE OF FEDERAL REGULATIONS, EXCEPT THOSE KNOWN AS
FRUITCAKES;
(II) CAKES, PASTRIES, AND COOKIES, EXCEPT THOSE THAT ARE OFFERED FOR
SALE IN INDIVIDUAL, PORTION PACK, SNACK-TYPE PACKAGES;
(III) ENGLISH MUFFINS, CORN MUFFINS, BRAN MUFFINS, AND OTHER SIMILAR
PRODUCTS;
(C) THE FOLLOWING PREPACKAGED DAIRY AND DAIRY-TYPE PRODUCTS:
(I) THOSE PRODUCTS WITH OR WITHOUT ADDITIVES OR FLAVORINGS, KNOWN AS
CHEESE, AS DEFINED PURSUANT TO TITLE 21, CHAPTER 1, PART 133 OF THE CODE
OF FEDERAL REGULATIONS, THAT CONTAIN FIFTY PERCENT OR MORE MOISTURE IN
THE FINISHED PRODUCT;
(II) LOW-FAT, MULTI-VITAMIN, MULTI-MINERAL TYPE MILK PRODUCTS WHICH
ARE NORMALLY STORED AT TEMPERATURES BETWEEN THIRTY-TWO DEGREES FAHREN-
HEIT AND FORTY DEGREES FAHRENHEIT;
(III) FLAVORED MILK;
(IV) CULTURED MILK, CULTURED MILK PRODUCTS, CULTURED SKIM-MILK, AND
CULTURED SKIM-MILK PRODUCTS, WITH OR WITHOUT FRUITS, VEGETABLES, MEATS,
CHEESES, OR OTHER ADDITIVES;
(V) MILK SHAKE;
(VI) EGGNOG;
(VII) YOGURT, MADE FROM SKIM-MILK OR WHOLE MILK, WITH OR WITHOUT
FRUITS, VEGETABLES, MEATS, OR OTHER ADDITIVES;
(VIII) WHIPPED CREAM AND INSTANT WHIPPED CREAM;
(IX) SOUR CREAM, CULTURED CREAM, SALAD CREAM, AND NON-CULTURED SOUR
CREAM, WITH OR WITHOUT CULTURED HALF AND HALF;
(X) SOUR HALF AND HALF, CULTURED HALF AND HALF, NON-CULTURED SOUR HALF
AND HALF, AND NON-CULTURED HALF AND HALF;
(XI) DAIRY DRESSING AND DAIRY DIP;
(XII) NON-DAIRY COFFEE CREAMERS WHICH ARE NORMALLY STORED AT TEMPER-
ATURES BETWEEN THIRTY-TWO DEGREES FAHRENHEIT AND FORTY DEGREES FAHREN-
HEIT; AND
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(D) ALL PRE-PACKAGED, PREPARED FOODS WHICH REQUIRE REFRIGERATION.
3. "RETAIL" OR "RETAIL SALE" MEANS A SALE TO A CONSUMER OR TO ANY
PERSON FOR ANY PURPOSE OTHER THAN FOR RESALE;
4. "SELL" OR "OFFER TO SELL" MEANS THE ACT OF SELLING, DISPLAYING, OR
OFFERING FOR RETAIL SALE FOR OFF-PREMISES HUMAN CONSUMPTION.
S 156-1. LABELLING REQUIREMENTS. 1. NO FOOD STORE SHALL OFFER FOR
RETAIL SALE ANY PERISHABLE FOOD UNLESS THE CONTAINER OF SUCH PERISHABLE
FOOD IS LABELLED IN ACCORDANCE WITH SUBDIVISION TWO OF THIS SECTION AND
STAMPED, PRINTED, OR OTHERWISE PLAINLY AND CONSPICUOUSLY MARKED WITH THE
FOLLOWING INFORMATION:
(A) THE LAST DAY OR DATE OF SALE OR THE LAST DAY OR DATE FOR RECOM-
MENDED USAGE; AND
(B) A STATEMENT INDICATING RECOMMENDED CONDITIONS OR METHODS OF STOR-
AGE.
2. THE INFORMATION REQUIRED BY SUBDIVISION ONE OF THIS SECTION SHALL
BE CLEARLY MARKED ON EACH AND EVERY PACKAGE OR ITEM AS FOLLOWS:
(A) THE INFORMATION SHALL APPEAR ON THE TOP COVER OR PRINCIPAL FRONT
OR BACK PANEL OF ITS CONTAINER OR ON A LABEL AFFIXED THERETO; OR
(B) A NOTICE SHALL APPEAR ON THE TOP COVER OR PRINCIPAL FRONT OR BACK
PANEL OR ON THE LABEL AFFIXED THERETO INDICATING THE LOCATION ON THE
PACKAGE OF SUCH INFORMATION.
S 156-M. EXEMPTIONS. THE REQUIREMENTS OF SECTION ONE HUNDRED
FIFTY-SIX-1 OF THIS ARTICLE SHALL NOT APPLY TO:
1. ANY PRODUCT STORED AT OR BELOW A TEMPERATURE OF THIRTY-TWO DEGREES
FAHRENHEIT IN ACCORDANCE WITH THE RECOMMENDATION OF THE MANUFACTURER OR
PROCESSOR;
2. ANY PRODUCT HEREINABOVE DESIGNATED WHICH IS STERILIZED WHEN HERMET-
ICALLY SEALED AND PACKAGED AND IS SO MAINTAINED UNTIL THE TIME OF SALE
BY A FOOD STORE TO THE PUBLIC;
3. ANY PRODUCT MADE FROM PRODUCTS AFTER THE DATE MARKED WHERE SUCH
SECONDARY PRODUCTS ARE THE RESULT OF AN ADDITIONAL PROCESSING STAGE;
4. ANY COMPANY OWNED STORES, COMMONLY KNOWN AS "THRIFT STORES", AT
WHICH CERTAIN PRODUCTS ARE SOLD OR OFFERED FOR SALE, AT A REDUCED PRICE,
AFTER THE RECOMMENDED SELL-BY-DATE FOR SUCH GOODS; AND
5. ANY PACKAGE WHICH CONTAINS SMALLER PACKAGES OF FOOD PRODUCT IF THE
SMALLER PACKAGES BEAR LABEL INFORMATION WHICH COMPLIES WITH THE
PROVISIONS OF THIS SECTION AND IF THAT INFORMATION IS READILY ACCESSIBLE
TO THE CONSUMER.
S 156-N. EXCEPTIONAL CIRCUMSTANCES. UPON WRITTEN APPLICATION TO THE
COMMISSIONER, AND UPON A SHOWING OF EXCEPTIONAL CIRCUMSTANCES, A FOOD
STORE MAY BE GRANTED AN EXTENSION IN WRITING, NOT TO EXCEED SIX MONTHS,
IN WHICH TO COMPLY, IN WHOLE OR IN PART, WITH THE REQUIREMENTS OF THIS
ARTICLE. IN THE EVENT THAT A FOOD STORE HAS SUBSTANTIALLY COMPLIED WITH
THE REQUIREMENTS OF THIS ARTICLE DURING THE PREVIOUSLY GRANTED EXTENSION
PERIOD, BUT EXCEPTIONAL CIRCUMSTANCES EXIST WHICH RENDER FULL COMPLIANCE
DURING THE EXTENSION PERIOD IMPOSSIBLE, IMPRACTICABLE, OR CREATE UNDUE
FINANCIAL HARDSHIP, A FOOD STORE MAY APPLY IN WRITING TO THE COMMISSION-
ER FOR AN ADDITIONAL FINAL EXTENSION IN ORDER TO FULLY COMPLY WITH THIS
ARTICLE. ANY REQUEST FOR AN ADDITIONAL FINAL EXTENSION MUST BE SUPPORTED
BY EVIDENCE OF EXCEPTIONAL CIRCUMSTANCES AND SUBSTANTIAL COMPLIANCE
DURING THE PREVIOUSLY GRANTED EXTENSION PERIOD.
S 156-O. ENFORCEMENT. 1. WHENEVER THE COMMISSIONER OR HIS OR HER
REPRESENTATIVE SHALL FIND ANY FOOD STORE IN VIOLATION OF THIS ARTICLE,
THE COMMISSIONER OR HIS OR HER REPRESENTATIVE MAY ISSUE A WRITTEN "STOP
SALE ORDER" TO SUCH FOOD STORE WARNING OF SUCH VIOLATION. ANY SUCH ORDER
MAY DIRECT THE FOOD STORE TO REMOVE FROM SALE OR DISPOSE OF ANY PERISH-
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ABLE FOOD FOUND TO BE IN VIOLATION OF SECTION ONE HUNDRED FIFTY-SIX-1 OF
THIS ARTICLE.
2. ANY FOOD STORE WHICH HAS BEEN ISSUED A "STOP SALE ORDER" PURSUANT
TO SUBDIVISION ONE OF THIS SECTION AND WHICH FAILS TO FOLLOW ANY ONE OR
MORE DIRECTIVES SET FORTH THEREIN SHALL BE SUBJECT TO A CIVIL PENALTY IN
AN AMOUNT NOT TO EXCEED FIVE HUNDRED DOLLARS.
S 156-P. RULES AND REGULATIONS. THE COMMISSIONER IS AUTHORIZED AND
DIRECTED TO PROMULGATE ANY RULES AND REGULATIONS NECESSARY AND APPROPRI-
ATE FOR THE IMPLEMENTATION OF THIS ARTICLE.
S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however that effective immediate-
ly, the addition, amendment and/or repeal of any rules or regulations
necessary for the implementation of the foregoing provisions of this act
on its effective date are authorized and directed to be made and
completed on or before such effective date.