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This entry was published on 2021-04-23
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SECTION 16-X
Dairy promotion act
Urban Development Corporation Act 174/68 (UDA) CHAPTER INTRO
* § 16-x. Dairy promotion act. 1. Declaration of policy. (a) It is
hereby declared that the mission of the corporation is to promote a
vigorous and growing state economy. In implementing this mission, the
corporation has undertaken a vigorous campaign to market the state's
assets and, by carrying out the provisions of this section, would
further this mission by promoting the state's dairy industry.

(b) It is further declared that the continued existence of the state
dairy industry, and the continued production of milk on the farms of
this state, is of vast economic importance to the state and to the
health and welfare of the inhabitants thereof; that it is essential, in
order to assure such continued production of milk and its handling and
distribution, that prices to producers be such as to return reasonable
costs of production, and at the same time to assure an adequate supply
of milk and dairy products to consumers at reasonable prices; and to
these ends it is essential that consumers and others be adequately
informed as to the dietary needs and advantages of milk and dairy
products and as to the economies resulting from the use of milk and
dairy products, and to command for milk and dairy products, consumer
attention and demand consistent with their importance and value. It is
further declared that continued decline in the consumption of fluid milk
and some other dairy products will jeopardize the production of adequate
supplies of milk and dairy products because of increasing surpluses
necessarily returning less to producers; and that continued adequate
supplies of milk and dairy products is a matter of vital concern as
affecting the health and general welfare of the people of this state. It
is therefore declared to be the legislative intent and policy of the
state:

(i) To enable milk producers and others in the dairy industry, with
the aid of the state, to more effectively promote the consumption of
milk and dairy products,

(ii) To provide methods and means for the development of new and
improved dairy products, and to promote their use, and

(iii) To this end, to eliminate the possible impairment of the
purchasing power of the milk producers of this state and to assure an
adequate supply of milk for consumers at reasonable prices.

2. Definitions. As used in this section the following terms shall have
the following meanings:

(a) "President" means the president of the corporation.

(b) "Dairy products" means milk and products derived therefrom, and
products of which milk or a portion thereof is a significant part.

(c) "Producer" means any person in this state who is engaged in the
production of milk or who causes milk to be produced for any market in
this or any other state.

(d) "Advisory board" means the persons appointed by the commissioner
from nominations from producers to assist the president in administering
a dairy promotion order.

(e) "Milk dealer" means any person who purchases or handles or
receives or sells milk, including individuals, partnerships,
corporations, cooperative associations, and unincorporated cooperative
associations.

(f) "Dairy promotion order" means an order issued by the president,
pursuant to the provisions of this section.

(g) "Cooperative" means an association or federation or cooperative of
milk producers organized under the laws of New York state, or any other
state, having agreements with their producer members to market, bargain
for or sell the milk of such producers, and is actually performing one
or more of these services in the marketing of the milk produced by their
members, through the cooperative or through a federation of milk
cooperatives in which the cooperative has membership.

(h) "State" means the state of New York.

(i) "Department" means the New York state department of agriculture
and markets.

(j) "Commissioner" means the commissioner of the New York state
department of agriculture and markets.

3. Powers and duties of the president. (a) The president shall
administer and enforce the provisions of this section. In order to
effectuate the declared policy of this section the president, in
consultation with the commissioner and producers, may, after due notice
and hearing, make and issue a dairy promotion order, or orders.

(b) Such order or orders shall, in consultation with the commissioner
and producers, be issued and amended or terminated in accordance with
the following procedures:

(i) Before any such order may become effective it must be approved by
fifty-one per centum of the producers of milk voting in the referendum
for the area to be regulated by such order. Such referendum shall not
constitute valid approval unless fifty-one per centum of all milk
producers for the area to be regulated vote in the referendum. Producers
may vote by individual ballot or through their cooperatives in
accordance with the following procedures:

(A) Cooperatives may submit written approval of such order within a
period of one hundred twenty days after the president has announced a
referendum on a proposed order, for such producers who are listed and
certified to the president as members of such cooperative; provided,
however, that any cooperative before submitting such written approval
shall give at least sixty days prior written notice to each producer who
is its member, of the intention of the cooperative to approve such
proposed order, and further provide that if such cooperative does not
intend to approve such proposed order, it shall likewise give written
notice to each such producer who is its member, of its intention not to
approve of such proposed order.

(B) Any producer may obtain a ballot from the president so that he or
she may register his or her own approval or disapproval of the proposed
order.

(C) A producer who is a member of a cooperative which has notified him
or her of its intent to approve or not to approve of a proposed order,
and who obtains a ballot and with such ballot expresses his or her
approval or disapproval of the proposed order, shall notify the
president as to the name of the cooperative of which he or she is a
member, and the president shall remove such producer's name from the
list certified by such cooperative.

(D) In order to ensure that all milk producers are informed regarding
a proposed order, the president shall notify all milk producers that an
order is being considered and that each producer may register his or her
approval or disapproval with the president either directly or through
his or her cooperative.

(E) The president shall consult with the milk producers and establish
a referendum advisory committee to assist and advise him or her in the
conduct of the referendum. Such committee shall review referendum
procedures and the tabulation of results, and shall advise the president
of its findings. The final certification of the referendum results shall
be made by the president. The committee shall be selected by the
commissioner in consultation with the president, and shall consist of
not less than three members, none of whom shall be persons directly
affected by the promotion order being voted upon. Two members shall be
representatives of general farm organizations which are not directly
affected by the order being voted upon. The members of the committee
shall not receive a salary but shall be entitled to actual and
reasonable expenses incurred in the performance of their duties.

(ii) The president, in consultation with the commissioner, may, and
upon written petition of not less than ten per centum of the producers
in the area, either as individuals or through cooperative
representation, shall, call a hearing to amend or terminate such order,
and any such amendment or termination shall be effective only upon
approval of fifty-one per centum of the producers of milk for the area
regulated participating in a referendum vote as provided pursuant to
this paragraph.

(c) The president, consulting with and seeking the advice and consent
of the advisory board, shall administer and enforce any such dairy
promotion order while it is in effect, for the purpose of:

(i) Encouraging the consumption of milk and dairy products by
acquainting consumers and others with the advantages and economy of
using more of such products,

(ii) Protecting the health and welfare of consumers by assuring an
adequate supply of milk and dairy products,

(iii) Providing for research programs designed to develop new and
improved dairy products,

(iv) Providing for research programs designed to acquaint consumers
and the public generally with the effects of the use of milk and dairy
products on the health of such consumers,

(v) Carrying out, in other ways, the declared policy and intent of
this section.

4. Provisions of dairy promotion orders. Any dairy promotion order or
orders may contain, among others, any or all of the following:

(a) Provision for levying an assessment against all producers subject
to the regulation for the purpose of carrying out the provisions of such
order and to pay the cost of administering and enforcing such order. In
order to collect any such assessments, provision shall be made for each
milk dealer who receives milk from producers to deduct the amount of
assessment from moneys otherwise due to producers for the milk so
delivered. The rate of such assessment shall not exceed two percent per
hundredweight of the gross value of the producers' milk, and there may
be credited against any such assessment the amounts per hundredweight
otherwise paid by any producer covered by the order by voluntary
contribution or otherwise pursuant to any other federal or state milk
market order for any similar research promotion or advertising program.
Notwithstanding the provisions of paragraph (b) of subdivision three of
this section, the president, upon written petition of no less than
twenty-five percent of producers in the area, either as individuals or
through cooperative representation, and in consultation with the
commissioner, may call a hearing for the sole purpose of establishing a
new rate of assessment hereunder and may submit a proposed change in the
rate of assessment to the producers for acceptance or rejection without
otherwise affecting the order. The producers in the area may vote on the
proposed rate either as individuals or through cooperative
representation. Notwithstanding the foregoing provisions of this
paragraph and of paragraph (b) of subdivision three of this section, or
the provisions of any order promulgated pursuant to this section, the
rate of assessment, for any period during which a dairy products
promotion and research order established pursuant to the federal dairy
and tobacco adjustment act of 1983 is in effect, shall not be less than
an amount equal to the maximum credit which producers participating in
this state's dairy products promotion or nutrition education programs
may receive pursuant to subdivision (g) of Sec. 113 of said federal act.

(b) Provision for payments to organizations engaged in campaigns by
advertisements or otherwise, including participation in similar regional
or national plans or campaigns to promote the increased consumption of
milk and dairy products, to acquaint the public with the dietary
advantages of milk and dairy products and with the economy of their
inclusion in the diet and to command, for milk and dairy products,
consumer attention consistent with their importance and value.

(c) Provision for payments to institutions or organizations engaged in
research leading to the development of new or improved dairy products or
research with respect to the value of milk and dairy products in the
human diet.

(d) Provision for requiring records to be kept and reports to be filed
by milk dealers with respect to milk received from producers and with
respect to assessments on the milk of such producers.

(e) Provision for the auditing of the records of such milk dealers for
the purpose of verifying payment of producer assessments.

(f) Provision for an advisory board pursuant to subdivision 10 of this
section.

(g) Provision for the president to retain money collected under any
marketing order issued pursuant to this section, to defray the costs and
expenses in the administration thereof.

(h) Such other provisions as may be necessary to effectuate the
declared policies of this section.

5. Matters to be considered. In carrying out the provisions of this
section and particularly in determining whether or not a dairy promotion
order shall be issued, the president, in consultation with the
commissioner, shall take into consideration, among others, facts
available to him or her with respect to the following:

(a) The total production of milk in the area and the proportion of
such milk being utilized in fluid form and in other products,

(b) The prices being received for milk by producers in the area,

(c) The level of consumption per capita for fluid milk and of other
dairy products,

(d) The purchasing power of consumers,

(e) Other products which compete with milk and dairy products and
prices of such products.

6. Interstate orders for compacts. The commissioner is authorized to
confer and cooperate with the legally constituted authorities of other
states and of the United States with respect to the issuance and
operation of joint and concurrent dairy promotion orders or other
activities tending to carry out the declared intent of the act. The
commissioner may join with such other authorities in conducting joint
investigations, holding joint hearings and issuing joint or concurrent
order or orders complementary to those of the federal government and the
president, after consulting with the commissioner, shall have the
authority to employ or designate a joint agent or joint agencies to
carry out and enforce such joint, concurrent or supplementary orders.

7. Prior assessments. Prior to the effective date of any dairy
promotion order as provided in this section, the president, in
consultation with the commissioner, may require that cooperative
associations which have petitioned for such an order and that have
approved of the issuance of such an order, to deposit with the president
such amounts as he or she may deem necessary to defray the expense of
administering and enforcing such order until such time as the
assessments as herein before provided are adequate for that purpose.
Such funds shall be received, deposited and disbursed by the president
in the same manner as other funds received by him or her pursuant to
this section and the president shall reimburse those who paid these
prior assessments from other funds received by him or her pursuant to
this section.

8. Status of funds. Any moneys collected under any market order issued
pursuant to this section shall not be deemed to be state or corporation
funds and shall be deposited in a bank or other depository of the
corporation, approved by the president, allocated to each dairy
promotion order under which they were collected, and shall be disbursed
by the president only for the necessary expenses incurred by the
president with respect to each separate order, all in accordance with
the rules and regulations of the president. All such expenses shall be
subject to audits by the state comptroller. Any moneys remaining in such
fund allocable to a particular order, after the termination of such
order and not required by the president to defray the expenses of
operating such order, may in the discretion of the president be refunded
on a pro-rata basis to all persons from whom assessments therefor were
collected; provided, however, that if the president finds that the
amounts so refundable are so small as to make impracticable the
computation and refunding of such moneys, the president may use such
moneys to defray the expenses incurred by him or her in the
promulgation, issuance, administration or enforcement of any other
similar dairy promotion order or in the absence of any other such dairy
promotion order, the president may pay such moneys to any organization
or institution as provided in paragraph (b) or (c) of subdivision four
of this section.

9. Budget. The commissioner, in consultation with the president, shall
prepare a budget for the administration and operating costs and expenses
including advertising and sales promotion when required in any dairy
promotion order executed hereunder and to provide for the collection of
such necessary fees or assessments to defray costs and expenses, in no
case to exceed two percent per hundredweight of the gross value of milk
marketed by producers in the area covered by the order.

10. Advisory board. (a) Any dairy promotion order issued pursuant to
this section shall provide for the establishment of an advisory board to
advise and assist the president in the administration of such order. The
president shall administer and enforce any such dairy promotion order
while it is in effect, consulting with the advisory board and seeking
its advice and consent. This board shall consist of not less than five
members and shall be appointed by the commissioner from nominations
submitted by producers marketing milk in the area to which the order
applies. Nominating procedure, qualification, representation, and size
of the advisory board shall be prescribed in the order for which such
board was appointed.

(b) No member of an advisory board shall receive a salary but shall be
entitled to his or her actual and reasonable expenses incurred while
performing his or her duties as authorized in this section.

(c) The duties and responsibilities of the advisory board shall be
prescribed by the president, in consultation with the commissioner, and
he or she shall specifically delegate to the advisory board, by
inclusion in the dairy promotion order the following duties and
responsibilities:

(i) The recommendation to the president of administrative rules and
regulations relating to the order.

(ii) Recommending to the president such amendments to the order as
deemed advisable.

(iii) The preparation and submission to the commissioner, in
consultation with the president, of an estimated budget required for the
proper operation of the order.

(iv) Recommending to the president methods for assessing producers and
methods for collecting the necessary funds.

(v) Assisting the president in the collection and assembly of
information and data necessary for the proper administration of the
order.

(vi) The performance of such other duties in connection with the order
as the president shall designate.

11. Rules and regulations; enforcement. (a) The president may, with
the advice and consent of the advisory board, make and issue such rules
and regulations as may be necessary to effectuate the provisions and
intent of this section and to enforce the provisions of any dairy
promotion order, all of which shall have the force and effect of law.

(b) The president, in consultation with the commissioner may institute
such action at law or in equity as may appear necessary to enforce
compliance with any provision of this section, or any rule or
regulation, or dairy promotion order committed to his or her
administration, and may apply for relief by injunction if necessary to
protect the public interest without being compelled to allege or prove
that an adequate remedy at law does not exist. Such application shall be
made to the supreme court in any district or county provided in the
civil practice law and rules, or to the supreme court in the third
judicial district.

12. Cooperation by the department. The president may request and
receive, within ninety days of such request from the department such
assistance, information and cooperation as may be necessary for the
corporation to provide services with respect to the administration of
the procedures set forth for the issuance, termination or amendment of
any dairy promotion order and/or the administration of any such order.
The corporation shall retain an amount equal to the expenses incurred by
the corporation in performing its duties pursuant to this section and
reimburse the department an amount equal to the expenses incurred by the
department in supplying such services, subsequent to submission and
audit of a voucher therefor. Such reimbursement shall not exceed the
total amount of funds collected by the corporation pursuant to this
section less the reasonable expenses incurred by the corporation in
performing its duties pursuant to this section.

13. Indemnification. The state shall defend, indemnify and hold
harmless the corporation, its directors, officers, and employees, from
and against any and all claims, demands, causes of action, damages,
costs and expenses whatsoever arising directly or indirectly from, or
relating to, the administration of a dairy promotion order issued or
administered pursuant to this section. In connection with the foregoing,
the corporation shall give the state (a) prompt written notice of any
action, claim or threat of suit, (b) the opportunity to take over,
settle or defend such action, claim or suit at the state's sole expense,
and (c) assistance in the defense of any such action at the expense of
the state.

14. Contractual provisions. The corporation may contract for services
with respect to the implementation of this section in accordance with
the corporation's policies, procedures and guidelines. Notwithstanding
section 2879 of the public authorities law or any other law to the
contrary, any such contract may be procured by the corporation on a
sole-source basis, and shall not be subject to competitive bid or
competitive request for proposal requirements.

* NB Repealed July 31, 2026