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

A. 56                               3

  (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.