N.Y. Agriculture & Markets Law § 71-a: Declaration of policy

§ 71-a. Declaration of policy. 1. It is hereby declared that the dairy

industry is a paramount industry of the state and the production,

processing, packaging, distribution and sale of frozen desserts is an

important segment of the dairy industry and is of vast economic

importance to the state and of vital importance to the consuming public

of the state, and which should be encouraged and promoted in the public

interest. It is further declared to be in the interest of the dairy

industry and of the consuming public that there be uniformity of

standards for frozen desserts as between the various states and the

federal government to the end that there may be free movement of frozen

desserts between the states and to the end that the inefficiency,

needless expense, and confusion caused by differences in products sold

under the same name, and differences in labeling of identical products

may be eliminated. Regulations pertaining to sanitary requirements,

production, processing, all labeling requirements, and distribution of

frozen desserts products which are uniform and uniformily enforced are

essential for the protection of consumers and the economic well being of

the dairy industry. It is further declared that advances in food

technology have resulted in the development of products similar to

frozen desserts, including such products having a lower butterfat

content and products made with oils or fats other than butterfat and

with solids not fat from sources other than dairy products and that such

products are recognized as wholesome and nutritious articles of food;

that such products are similar in appearance, odor or taste and are

difficult to differentiate from frozen desserts made with dairy

products. It is further declared to be the purpose of this article to

promote honesty and fair dealing in the interest of consumers, to insure

fair competition as between the manufacturers and distributors of the

different products and to prevent confusion and deception in the sale of

all such products by establishing definitions and standards of identity

for such products, to eliminate needless duplication of inspection and

conflicting and diverse requirements by various agencies, and by

providing for rules and regulations which will effect their orderly

marketing and insure uniform sanitary standards and enforcement.

2. For the purpose of this article and for any rules and regulations

promulgated pursuant thereto, the term "frozen desserts" shall be deemed

to include ice cream, frozen custard, French ice cream, French custard

ice cream, artificially sweetened ice cream, ice milk, freezer made

shakes, fruit sherbert, water ice, quiescently frozen confection,

quiescently frozen dairy confection, manufactured desserts mix, frozen

confection, mellorine frozen dessert as all such products are commonly

known, together with any mix used in such frozen desserts, and any

products which are similar in appearance, odor or taste to such

products, or are prepared or frozen as frozen desserts are customarily

prepared or frozen, whether made with dairy products or non-dairy

products.

3. a. "Person" means and includes any individual, copartnership,

corporation, cooperative association, cooperative corporation, or

unincorporated association.

b. "Plant" means any single location or mobile manufacturing unit

which manufactures frozen desserts.

4. Rules and regulations. (a) The commissioner shall, after public

hearing, promulgate definitions and standards for frozen desserts

including those made with dairy products, those not made with dairy

products and those which are similar in appearance, odor or taste to

such products or are prepared or frozen as frozen desserts are

customarily prepared or frozen, together with rules and regulations for

the packaging and all labeling requirements for all such products, and

other conditions relating to the wholesale manufacture, processing,

packaging, distribution and sale at wholesale of all such products;

including, but not limited to, sanitization pertaining to manufacture,

processing, handling, distribution, buildings, grounds, equipment,

personnel and pasteurization or heat treatment of frozen desserts or

ingredients. No municipality or county may impose any regulation or

standard for frozen desserts different from those provided herein or by

regulations promulgated hereunder. No municipality or county may require

the inspection of frozen dessert plants beyond its borders and shall

accept the certification of the commissioner that such plants conform to

this act and the rules and regulations promulgated hereunder, unless

there is substantial reason to believe that a manufacturer of frozen

desserts, offered for sale in such county or municipality, is not in

substantial compliance with the requirements of this article or the

regulations promulgated pursuant thereto.

(b) Following any hearing to consider definitions and standards or

rules and regulations, pursuant to paragraph (a) of this subsection, the

commissioner shall issue a recommended decision and shall afford

interested parties an opportunity to file exceptions to such recommended

decision based upon the facts in the hearing record. After full

consideration has been given to such exceptions, a final decision shall

be made.

(c) No person shall manufacture, distribute or sell in this state a

frozen dessert for which a definition and standard has not been

promulgated pursuant to this article.

(d) Any person who desires to manufacture, distribute or sell in this

state, any frozen dessert for which a definition and standard has not

been promulgated by the commissioner pursuant to this section, shall

first make application to the commissioner for the promulgation of a

definition and standard for such proposed frozen dessert. Such

application shall include the essential details of such proposed

definition and standard. Upon the receipt of such an application, the

commissioner shall call a public hearing for the purpose of considering

such proposed definition and standard. In determining whether or not

such proposed definition and standard shall be promulgated, the

commissioner shall consider, among other things, the following:

1. Is the proposed product a frozen dessert as provided pursuant to

the provisions of subdivision two of this section?

2. Is the proposed frozen dessert substantially different from other

frozen desserts for which definitions and standards have already been

promulgated by the commissioner?

3. Is it in the public interest to promulgate such proposed definition

and standard?

4. Will the promulgation of such proposed definition and standard be

advantageous to consumers and not result in a lowering of health

standards or promote fraud and deception?

Following the hearing to consider any such proposed definition and

standard, the commissioner shall issue a recommended decision as

provided pursuant to paragraph (b) of subdivision four of this section,

either adopting, modifying, or denying the proposed definition and

standard, giving interested parties an opportunity to file exceptions,

within thirty days, to such recommended decision based upon the facts in

the hearing record, and after full consideration has been given to any

such exceptions, a final decision shall be made.