THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY CARROLL, HANNA, BEYER, BRENNAN, CALTAGIRONE, DALEY, DeLUCA, FABRIZIO, FREEMAN, GEIST, GEORGE, GRUCELA, HENNESSEY, JOSEPHS, KULA, MELIO, M. O'BRIEN, PASHINSKI, READSHAW, SIPTROTH, K. SMITH, YUDICHAK, GOODMAN AND W. KELLER, FEBRUARY 2, 2009

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 9, 2009   

AN ACT

Amending Title 3 (Agriculture) of the Pennsylvania Consolidated

Statutes, codifying the Public Eating and Drinking Place Law

and the Food Act; providing for the protection of public

health and for regulations; requiring licensing; further

providing for food employee certification and for farmers'

market; providing for penalties; and making related repeals.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Chapter 57 of Title 3 of the Pennsylvania

Consolidated Statutes is amended by adding subchapters to read:

CHAPTER 57

FOOD PROTECTION

[(Reserved)]

Subchapter

A.  Retail Food Facility Safety

B.  Food Safety

SUBCHAPTER A

RETAIL FOOD FACILITY SAFETY

Sec.

5701.  Short title of chapter.

5702.  Definitions.

5703.  License required.

5704.  Inspection, sampling and analysis.

5705.  (Reserved).

5706.  (Reserved).

5707.  Powers of department.

5708.  Infectious persons.

5709.  Linens, equipment and utensils.

5710.  Retail food facility and employee cleanliness.

5711.  Toilets, sinks and drains.

5712.  (Reserved).

5713.  School cafeterias and organized camps.

5714.  Penalties.

5715.  (Reserved).

5716.  Acts not affected.

§ 5701.  Short title of chapter.

This chapter shall be known and may be cited as the Retail

Food Facility Safety Act.

§ 5702.  Definitions.

The following words and phrases when used in this subchapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Bed and breakfast homestead or inn."  A private residence

which contains ten or fewer bedrooms used for providing

overnight accommodations to the public and in which breakfast is

the only meal served and is included in the charge for the room.

"Employee."  The license holder, person in charge, person

having supervisory or management duties, person on the payroll,

family member, volunteer, person performing work under

contractual agreement or other person working in a retail food

facility.

"Food employee."  An individual working with unpackaged food,

food equipment or utensils or food contact surfaces.

"License."  A grant to a proprietor to operate a retail food

facility.

"Licensor."  Any of the following:

(1)  The county department of health or joint-county

department of health whenever a retail food facility is

located in a political subdivision under the jurisdiction of

a county department of health or joint-county department of

health.

(2)  The health authorities of cities, boroughs,

incorporated towns and first class townships whenever a

retail food facility is located in a city, borough,

incorporated town or first class township not under the

jurisdiction of a county department of health or joint-county

department of health.

(3)  The health authorities of second class townships and

second class townships which have adopted a home rule charter

which elect to issue licenses under this subchapter whenever

a retail food facility is located in a second class township

or second class township which has adopted a home rule

charter not under the jurisdiction of a county department of

health or joint-county department of health.

(4)  The Department of Agriculture whenever a retail food

facility is located in any other area of this Commonwealth.

"Organized camp."  A combination of programs and facilities

established for the primary purpose of providing an outdoor

group living experience for children, youth and adults, with

social, recreational and educational objectives, and operated

and used for five or more consecutive days during one or more

seasons of the year.

"Person in charge."  A person designated by a retail food

facility operator to be present at a retail food facility and

responsible for the operation of the retail food facility at the

time of inspection.

"Proprietor."  A person, partnership, association or

corporation conducting or operating a retail food facility

within this Commonwealth.

"Public eating or drinking place."  A place within this

Commonwealth where food or drink is served to or provided for

the public, with or without charge. The term does not include

dining cars operated by a railroad company in interstate

commerce or a bed and breakfast homestead or inn.

"Raw agricultural commodity."  As defined under section 5722

(relating to definitions).

"Retail food establishment."  An establishment which stores,

prepares, packages, vends, offers for sale or otherwise provides

food for human consumption and which relinquishes possession of

food to a consumer directly, or indirectly, through a delivery

service such as home delivery of grocery orders or delivery

service provided by common carriers. The term does not include

dining cars operated by a railroad company in interstate

commerce or a bed and breakfast homestead or inn.

"Retail food facility."  A public eating or drinking place or

a retail food establishment.

§ 5703.  License required.

(a)  Unlawful conduct.-- Except as provided in subsection

(b), it shall be unlawful for any proprietor to conduct or

operate a retail food facility without first obtaining a license

for each retail food facility as provided in this subchapter.

(b)  Exempt retail food facilities.--

(1)  A licensor may exempt the following retail food

facilities from the license requirements of this section:

(i)  A food bank owned by a charitable nonprofit

entity and operated for charitable or religious purposes.

(ii)  A soup kitchen owned by a charitable nonprofit

entity and operated for charitable or religious purposes.

(iii)  A retail food facility that operates on no

more than three days each calendar year.

(iv)  A school cafeteria.

(v)  A retail food facility that is owned by a

charitable nonprofit entity and that is one or more of

the following:

(A)  Managed by an organization which is

established to promote and encourage participation or

support for extracurricular recreational activities

for youth of primary and secondary public, private

and parochial school systems on a not-for-profit

basis. This subparagraph does not apply to organized

camps.

(B)  Offers only foods that are nonpotentially

hazardous foods or beverages.

(vi)  A retail food facility in which food or

beverages are sold only through a vending machine.

If the licensor is the department, the exemption shall be

accomplished by order of the secretary and published in the

Pennsylvania Bulletin. If the licensor is an entity other

than the department, the exemption shall be accomplished by

order of the local government unit or units having

jurisdiction over the licensor. A retail food facility that

is exempted from the license requirements under this section

shall remain subject to inspection and all other provisions

of this subchapter.

(2)  A licensor shall exempt the following retail food

facilities from the license requirements of this section:

(i)  A retail food facility in which only

prepackaged, nonpotentially hazardous food or beverages

are sold.

(ii)  A retail food facility that sells only raw

agricultural commodities.

A retail food facility that is exempted from the license

requirements under this section shall remain subject to

inspection and all other provisions of this subchapter.

(c)  Issuance of license.--A retail food facility license

shall be issued by the licensor having jurisdiction. A license

shall specify the date of expiration, the period for which the

license is valid, the name of the licensee and the place

licensed. Licenses shall be conspicuously displayed at all times

in the place thereby licensed. Licenses shall not be

transferable.

(d)  Application requirement.--Any person owning or operating

or desiring to operate a retail food facility within this

Commonwealth shall make application for a license to the

licensor on forms furnished by the licensor. The forms shall, at

a minimum, set forth such information as the department may

require and any additional information a licensor that is not

the department may require under the authority of the act of

August 24, 1951 (P.L.1304, No.315), known as the Local Health

Administration Law. Application forms shall include the name and

address of the applicant, together with all the other

information deemed necessary to identify the applicant, provide

contact information for the applicant, identify the location of

the retail food facility that is the subject to the application

and facilitate the licensor's processing of the application.

(e)  Inspection.--

(1)  No license shall be issued until inspection of the

retail food facility has been made by the licensor and the

retail food facility meets the requirements of both this

subchapter and one of the following:

(i)  The rules and regulations of the department.

(ii)  The rules and regulations adopted under the

authority of the Local Health Administration Law.

(2)  Rules and regulations adopted by a licensor who is

not the department shall, at the minimum, meet the

requirements of this subchapter and the rules and regulations

of the department.

(f)  Reports.--If the licensor is an entity other than the

department, the licensor shall provide the department a copy of

any inspection report resulting from any inspection conducted

under authority of this subchapter within 30 days of the

inspection date. This copy may be sent by electronic methods, as

approved by the department. The department may, by regulation,

require that inspection reports be submitted in a specific

electronic format.

(g)  Term of license.--

(1)  Except as provided in paragraph (2), licenses shall

expire on the day after the original license anniversary date

at intervals of one year, or for any other license period

that is established by the department through regulation and

that uses risk-based factors identified in the current

edition of the Food Code, published by the United States

Department of Health, Food and Drug Administration, as a

basis for determining the appropriate license interval. An

application for renewal shall be made one month before the

expiration of an existing license. A license granted under

the provisions of this subchapter shall be renewed if the

most recent inspection by the licensor was conducted within

the preceding license period and determined that requirements

specified in this chapter with respect to the retail food

facility were met.

(2)  A temporary license for a retail food facility that

operates on no more than 14 days in one calendar year or for

a retail food facility operating at a fair, festival or

similar temporary event shall be granted with respect to the

calendar year in which it is issued if the retail food

facility meets the requirements of this subchapter.

(h)  Sales and use tax license.--No license shall be issued

until the proprietor exhibits proof that the proprietor has

applied for or received a sales and use tax license or exemption

certificate from the Department of Revenue.

(i)  Denial or revocation of license.--

(1)  A licensor shall state in writing to the proprietor

the reason for the refusal to issue a license.

(2)  (i)  If a retail food facility licensed by the

department is in violation of a provision of this

subchapter, or of a regulation promulgated under

authority of this subchapter, or of any other act related

to public health and being applicable to retail food

facilities, the department may suspend or revoke the

license. If a retail food facility licensed by an entity

other than the department is in violation of a provision

of this subchapter, or of a regulation promulgated under

authority of this subchapter, or of any other act related

to public health and being applicable to retail food

facilities, or of the regulations of the licensor

pertaining to retail food facilities, the licensor may

suspend or revoke the license. The suspension of a

license shall be terminated when the violation for which

it was imposed has been found, upon inspection by the

licensor, to have been corrected. Whenever a license is

suspended or revoked, no part of the fee paid therefore

shall be returned to the proprietor.

(ii)  A licensor may, as an alternative to suspending

or revoking a license, provide a licensee a reasonable

interval within which to correct conditions that

constitute a violation that would result in the

suspension or revocation of the license, provided that

the health and safety of the employees, occupants and

patrons of the retail food facility can be reasonably

assured during that interval.

(j)  Fees.--The fees that may be charged under this

subchapter are as established by the licensor, if the licensor

is an entity other than the department, and shall be paid into

the city, borough, incorporated town, township or county

treasury. If the licensor is the department, the fees shall be

paid to the State Treasury through the department and are as

follows:

(1)  For licensure of a retail food facility that has not

been previously licensed, and that is owner-operated and that

has a seating capacity of less than 50: $103.

(2)  For licensure of a retail food facility that has not

been previously licensed and that is not described in

paragraph (1): $241.

(3)  For a renewal of a license or for issuing a license

to reflect a change of ownership: $82.

(4)  For a duplicate license, for each retail food 

facility location: $14.

(5)  For a temporary license under subsection (g)(2):

$14.

(6)  For conducting a follow-up inspection to review 

whether changes have been made to correct violations which

resulted in noncompliant status determined by a prior

inspection:

(i)  For the second follow-up inspection during the

licensure period: $150.

(ii)  For a third or subsequent follow-up inspection

during the licensure period: $300.

(7)  For conducting an inspection that is not otherwise

required by the department, but that is conducted at the

behest of the proprietor of the retail food facility: $150.

(8)  For any license described in paragraph (1), (2),

(3), (4) or (5) that is issued for a period of greater than

one year by regulation of the department in accordance with

subsection (g), the license fee otherwise prescribed under

those paragraphs shall be prorated for the license period.

(k)  Multiple retail food facilities.--Whenever any

proprietor maintains more than one retail food facility within

this Commonwealth, the proprietor shall be required to apply for

and procure a license for each retail food facility.

§ 5704.  Inspection, sampling and analysis.

(a)  Inspection.--For purposes of enforcement of this

subchapter, a licensor is authorized, upon presenting

appropriate credentials to the person in charge:

(1)  To enter at reasonable times any retail food

facility.

(2)  To inspect at reasonable times, within reasonable

limits and in a reasonable manner, the retail food facility.

(3)  To obtain a sample of any food at a retail food

facility for analysis as may be necessary to determine

compliance with this subchapter if the licensor, upon

completion of the inspection and prior to leaving the

facility, provides the person in charge a receipt describing

the sample obtained.

(b)  Billing.--A retail food facility from which a sample was

collected may bill the licensor for the fair market value of the

sample.

(c)  Report.--Upon completion of an inspection of a retail

food facility and prior to leaving the premises, a licensor

shall give to the person in charge a written report of the

findings of the inspection. Results from the analysis of any

samples taken shall be provided to the person in charge within

30 days of receipt.

§ 5705.  (Reserved).

§ 5706.  (Reserved).

§ 5707.  Powers of department.

(a)  Rules and regulations.--The department shall make such

reasonable rules and regulations as may be deemed necessary for

carrying out the provisions and intent of this subchapter. In

promulgating regulations, the department shall be guided by the

most current edition of the Food Code, published by the United

States Department of Health, Food and Drug Administration. The

regulatory standards established by the department under this

section shall be the minimum standards followed and applied by

any licensor with respect to retail food facilities.

(b)  Food service at schools and organized camps.--

(1)  The department shall provide for the inspection of a

food service at a school and for the training of school food

service personnel in accordance with the standards applied to

retail food facilities for schools located in areas in which

the department is the licensor. Upon request, the department

shall provide training to school food service personnel or

inspections of a food service at a school located in areas in

which the department is not the licensor.

(2)  The department shall provide for the inspection of a

food service at organized camps and for the training of food

service personnel at organized camps in accordance with the

standards applied to retail food facilities for organized

camps located in areas in which the department is the

licensor. Upon request, the department shall provide training

to organized camp food service personnel or inspections of a

food service at organized camps located in areas in which the

department is not the licensor.

(c)  Inspection.--If a licensor is required to provide the

department a copy of an inspection report pursuant to section

5703(f) (relating to license required) and fails to comply with

that requirement, the department may inspect and license the

subject retail food facility, and the licensor that failed to

comply with the inspection requirement shall not charge or

collect any fee for licensing the subject retail food facility.

If the department conducts an inspection, it shall, within 30

days, provide the licensor a copy of the inspection report.

(d)  Interagency coordination.--The department shall provide

inspection reports or test results that indicate human illness

related to food consumption or food handling practices, or to

other threats to the safety of the food supply, to the

Department of Health, the Department of Environmental Protection

or any other Commonwealth agency as necessary to develop a

comprehensive, coordinated interagency approach to protecting

public health and safeguarding the food supply.

§ 5708.  Infectious persons.

No proprietor shall allow any food employee to be in a retail

food facility if that person has an infectious or communicable

disease, as prohibited under the act of April 23, 1956 (1955

P.L.1510, No.500), known as the Disease Prevention and Control

Law of 1955, and its attendant regulations related to

restrictions on food handlers. In consultation with the

Department of Health, the department may promulgate regulations

with respect to specific illnesses as related to operations in a

retail food facility as it deems necessary for the protection of

public health.

§ 5709.  Linens, equipment and utensils.

No proprietor shall utilize any linens, equipment or utensils

unless the linens, equipment or utensils have been thoroughly

cleansed and sanitized in the manner prescribed by regulation of

the department.

§ 5710.  Retail food facility and employee cleanliness.

All retail food facilities, kitchens, dining rooms and all

places where foods are prepared, kept or stored shall be kept in

a clean and sanitary condition and be protected from dust, dirt,

insects and vermin in the manner prescribed by the regulations

of the department. The clothing and hands of employees shall at

all times be clean and sanitary. Except when washing fruits and

vegetables or when approved by the department, food employees

may not contact exposed, ready-to-eat food with their bare

hands, and shall use suitable utensils such as deli tissue,

spatulas, tongs, single-use gloves or dispensing equipment. No

domestic pets or other animals shall be permitted where food or

drink is prepared, handled or stored unless specifically

permitted or required under the Americans with Disabilities Act

of 1990 (Public Law 101-336, 104 Stat. 327) or other Federal or

State law. No person shall be permitted to use for living or

sleeping purposes any room or place in any retail food facility

which is regularly and customarily used for the preparation,

handling, storing or serving of food.

§ 5711.  Toilets, sinks and drains.

All toilets, hand-wash sinks, tubs, sinks and drains used in

or in connection with any retail food facility shall at all

times be kept in a clean and sanitary condition.

§ 5712.  (Reserved).

§ 5713.  School cafeterias and organized camps.

Officials of schools and organized camps shall cooperate with

the department in the conduct of cafeteria health and safety

inspections and shall participate in inspection services and

training programs made available by the department in areas

where the department is the licensor. Upon request, the

department shall provide training to school or organized camp

food service personnel or inspections of a food service at a

school or organized camp located in areas in which the

department is not the licensor.

§ 5714.  Penalties.

(a)  Retail food facilities under jurisdiction of

department.--For retail food facilities under the jurisdiction

of the department, penalties are as follows:

(1)  A person who violates any provision of this

subchapter or any rule, regulation, standard or order made

under this subchapter commits a summary offense for the first

or second offense and shall be subject to a fine not less

than $100 but not more than $300. A person who violates any

provision of this subchapter or any rule, regulation,

standard or order made under this subchapter commits a

misdemeanor of the third degree if the violation is a third

or subsequent offense and if the violation occurs within two

years of the date of the last previous offense.

(2)  In addition to proceeding under any other remedy

available at law or in equity for a violation of this

subchapter or a rule or regulation adopted or any order

issued under this subchapter, the secretary may assess a

civil penalty not to exceed $10,000 upon an individual or

business for each offense. No civil penalty shall be assessed

unless the person charged has been given notice and

opportunity for a hearing in accordance with law. In

determining the amount of the penalty, the secretary shall

consider the gravity of the violation. Whenever the secretary

finds a violation which did not cause harm to human health,

the secretary may issue a warning in lieu of assessing a

penalty. In case of inability to collect the civil penalty or

failure of any person to pay all or any portion of the

penalty as the secretary may determine, the secretary may

refer the matter to the Attorney General, who shall recover

the amount by action in the appropriate court.

(b)  Retail food facilities under other jurisdiction.--

Penalties shall be established by the licensor for retail food

facilities under the jurisdiction of a licensor that is not the

department.

§ 5715.  (Reserved).

§ 5716.  Acts not affected.

Nothing in this subchapter shall be construed to abrogate or

supersede any provision or regulation adopted under the act of

August 24, 1951 (P.L.1304, No.315), known as the Local Health

Administration Law, with regard to licensure, regulation and

inspection of a retail food facility, as defined in section 5702

(relating to definitions).

SUBCHAPTER B

FOOD SAFETY

Sec.

5721.  Short title of subchapter.

5722.  Definitions.

5723.  Prohibited acts.

5724.  Temporary or permanent injunctions.

5725.  Penalties.

5726.  Detention and condemnation.

5727.  Temporary permits.

5728.  Adulteration of food.

5729.  Misbranding of food.

5730.  Regulations to exempt certain labeling requirements.

5731.  Poisonous or deleterious substances and tolerances.

5732.  Inspection, sampling and analysis.

5733.  Rules and regulations.

5734.  Registration of food establishments.

5735.  Product registration.

5736.  Construction of subchapter.

5737.  Acts not affected.

§ 5721.  Short title of subchapter.

This subchapter shall be known and may be cited as the Food

Safety Act.

§ 5722.  Definitions.

The following words and phrases when used in this subchapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Color additive."  A material which is a dye, pigment or

other substance made by a process of synthesis or similar

artifice or extracted, isolated or otherwise derived, with or

without intermediate or final change of identity, from a

vegetable, animal, mineral or other source and when added or

applied to a food is capable, alone or through reaction with

other substances, of imparting color thereto. The term includes

black, white and intermediate grays. The term does not include:

(1)  Any material which the Secretary of Agriculture, by

regulation, determines is used or intended to be used solely

for a purpose or purposes other than coloring.

(2)  Any pesticide chemical, soil or plant nutrient or

other agricultural chemical solely because of its effect in

aiding, retarding or otherwise affecting, directly or

indirectly, the growth or other natural physiological process

of produce of the soil and thereby affecting its color,

whether before or after harvest.

"Federal acts."  The Wholesome Meat Act (Public Law 90-201,

21 U.S.C. § 601 et seq.), the Federal Food, Drug, and Cosmetic

Act (52 Stat. 1040, 21 U.S.C. § 301 et seq.), the Poultry

Products Inspection Act (Public Law 85-172, 21 U.S.C. § 451 et

seq.), the Fair Packaging and Labeling Act (Public Law 89-755,

15 U.S.C. § 1451 et seq.), the Federal Insecticide, Fungicide,

and Rodenticide Act (61 Stat. 163, 7 U.S.C. § 136 et seq.) and

the Nutrition Labeling and Education Act of 1990 (Public Law

101-535, 104 Stat. 2353).

"Food."  An article used for food or drink by humans,

including chewing gum and articles used for components of any

article. The term does not include medicines and drugs.

"Food additive."  A substance, the intended use of which

results or may reasonably be expected to result, directly or

indirectly, in its becoming a component or otherwise affecting

the characteristics of any food if the substance is not

generally recognized among experts qualified by scientific

training and expertise to evaluate its safety, as having been

adequately shown through scientific procedures or, in the case

of a substance used in food prior to January 1, 1958, through

either scientific procedures or experience based on common use

in food to be safe under the conditions of its intended use. The

term does not include the following:

(1)  A pesticide chemical in or on a raw agricultural

commodity.

(2)  A pesticide chemical to the extent that it is

intended for use or is used in the production, storage or

transportation of any raw agricultural commodity.

(3)  A color additive.

(4)  Any substance used in accordance with a sanction or

approval granted prior to the enactment of this paragraph

pursuant to a statute repealed by this act, pursuant to the

Poultry Products Inspection Act (Public Law 85-172, 21 U.S.C.

§ 451 et seq.) or pursuant to the Wholesome Meat Act (Public

Law 90-201, 21 U.S.C. § 601 et seq.).

(5)  A new animal drug.

As used in this definition, the term "substance" includes any

substance intended for use in producing, manufacturing,

packaging, processing, preparing, treating, transporting or

holding food and any source of radiation intended for any use.

"Food establishment."  A room, building or place or portion

thereof or vehicle maintained, used or operated for the purpose

of commercially storing, packaging, making, cooking, mixing,

processing, bottling, baking, canning, freezing, packing or

otherwise preparing, transporting or handling food. The term

excludes retail food facilities, retail food establishments,

public eating and drinking places and those portions of

establishments operating exclusively under milk or milk products

permits.

"Imitation food."  A food that is a substitute for and

resembles another food but is nutritionally inferior to that

food.

"Label."  A display of written, printed or graphic matter

upon the immediate container of any food. The term "immediate

container" does not include package liners.

"Labeling."  All labels and other written, printed or graphic

matter upon a food or any of its containers or wrappings.

"Package."  Any container or wrapping in which food is

enclosed for delivery or display to retail purchasers. The term

does not include the following:

(1)  Shipping containers or wrappings for the

transportation of food in bulk or quantity to manufacturers,

packers or processors or to wholesale or retail distributors.

(2)  Shipping containers or wrappings used by retailers

to ship or deliver food to retail customers, if the

containers or wrappings bear no printed matter pertaining to

food.

(3)  Containers used for tray pack displays in retail

establishments.

(4)  Transparent containers or wrappings which do not

bear written, printed or graphic matter which obscures

information required to be displayed on the label.

"Pesticide chemical."  A substance used in the production,

storage or transportation of raw agricultural commodities which,

alone or in chemical combination or formulation with one or more

other substances, is a pesticide within the meaning of the act

of March 1, 1974 (P.L.90, No.24), known as the Pennsylvania

Pesticide Control Act of 1973.

"Potentially hazardous food."  As defined in the 2005 Food

Code published by the United States Department of Health, Food

and Drug Administration, or its successor document.

"Principal display panel."  A part of a label that is most

likely to be displayed, presented, shown or examined under

normal and customary conditions of display for retail sale and

is large enough to accommodate all the mandatory information

required to be placed on the label.

"Public eating and drinking place."  As defined in section

5702 (relating to definitions).

"Raw agricultural commodity."  A food in its raw or natural

state, including all fruits which are washed, colored or

otherwise treated in their unpeeled, natural form prior to

marketing.

"Retail food establishment."  As defined in section 5702

(relating to definitions).

"Retail food facility."  As defined in section 5702 (relating

to definitions).

"Secretary."  Includes an authorized representative, employee

or agent of the Department of Agriculture.

§ 5723.  Prohibited acts.

The following acts are prohibited:

(1)  Manufacture, sale, delivery, consignment, bailment,

holding or offering for sale of any food that is adulterated

or misbranded, except where a person in good faith delivers

or offers to deliver the food and furnishes shipping

documents to the secretary.

(2)  Adulteration or misbranding of any food.

(3)  Knowingly receiving in commerce any food which is

adulterated or misbranded and the delivery or proffered

delivery thereof for pay or otherwise.

(4)  Sale, delivery for sale, holding for sale or

offering for sale any article in violation of section 5731

(relating to poisonous or deleterious substances and

tolerances).

(5)  Refusal to permit during normal business hours entry

to, inspection of or taking of a sample or access to or

copying of any record at a food establishment as authorized

under section 5732(a)(2) and (3) (relating to inspection,

sampling and analysis).

(6)  Removal or disposal of a detained or embargoed food

article in violation of section 5726 (relating to detention

and condemnation).

(7)  Alteration, mutilation, destruction, obliteration or

removal of the whole or any part of the labeling of a food or

the doing of any other act with respect to a food, if the act

is done while the food is held for sale and results in the

food being adulterated or misbranded.

(8)  Forging, counterfeiting, simulating, falsely

representing or using without proper authority any mark,

stamp, tag, label or other identification device authorized

or required by regulation promulgated under this subchapter.

(9)  Use by any person to his own advantage or revealing,

other than to the secretary or the courts when relevant in

any judicial proceeding under this subchapter, of any

information acquired under authority of this subchapter

concerning any method or process which, as a trade secret or

confidential trade information, is entitled to protection.

(10)  Holding of any potentially hazardous food at unsafe

temperatures in violation of an applicable regulation issued

under this chapter.

(11)  Failure to register with the department under the

provisions of section 5734 (relating to registration of food

establishments).

(12)  Use of wording which incorrectly indicates or

implies that a label or product has received approval of the

department. A food establishment may not claim registration

either upon its label or package or otherwise, except as

provided in section 5735 (relating to product registration).

(13)  Sale of confectionery containing alcohol at a level

above one-half of 1% by volume.

(14)  Failure by a carrier to make records showing the

movement in commerce of any food or the holding thereof

during or after the movement and the quantity, shipper and

consignee thereof available for one year after the initial

date of movement of the food in commerce.

§ 5724.  Temporary or permanent injunctions.

In addition to any other remedies provided in this

subchapter, the secretary may apply to the Commonwealth Court or

to any other court having jurisdiction for a temporary or

permanent injunction restraining a person from violating this

subchapter or any regulation adopted under this subchapter.

§ 5725.  Penalties.

(a)  Criminal penalties.--A person who violates any provision

of this subchapter or any rule, regulation, standard or order

made under this subchapter commits a summary offense for the

first or second offense. A person who violates this subchapter

or any rule, regulation, standard or order made under this

subchapter commits a misdemeanor of the third degree if the

violation is a third or subsequent offense and if the violation

occurs within two years of the date of the last previous

offense.

(b)  Civil penalties.--In addition to proceeding under any

other remedy available at law or in equity for a violation of

this subchapter, or a rule or regulation adopted or any order

issued under this subchapter, the secretary may assess a civil

penalty not to exceed $10,000 upon an individual or business for

each offense. No civil penalty shall be assessed unless the

person charged has been given notice and opportunity for a

hearing in accordance with law. In determining the amount of the

penalty, the secretary shall consider the gravity of the

violation. Whenever the secretary finds a violation which did

not cause harm to human health, the secretary may issue a

warning in lieu of assessing a penalty. In case of inability to

collect the civil penalty or failure of any person to pay all or

any portion of the penalty as the secretary may determine, the

secretary may refer the matter to the Attorney General, who

shall recover the amount by action in the appropriate court.

(c)  Guaranty.--

(1)  No prosecution shall be sustained under the

provisions of this subchapter for the manufacture, delivery,

consignment, bailment, holding or sale of or offering for

sale, exposing for sale or having in possession with intent

to sell any adulterated or misbranded article against a

person from whom the article of food, sample or portion was

obtained by the department if the person can establish a

guaranty to the effect that the article of food is not

adulterated or misbranded within the meaning of this

subchapter, was adulterated or misbranded prior to coming

into the possession of the person and the person did not know

or have reason to know of the adulteration or misbranding or

was adulterated or misbranded after if left the possession

and control of the person. The guaranty must be signed by the

supplier, manufacturer, wholesale dealer, jobber or

distributor from whom the articles of food were purchased or

procured.

(2)  The guaranty to afford protection shall contain the

name and address of the supplier, manufacturer, wholesale

dealer, jobber or distributor making the sale of the article

of food to the person holding the guaranty. A supplier,

manufacturer, wholesale dealer, jobber or distributor giving

a guaranty under the provisions of this subchapter may be

held responsible and may be proceeded against for the

adulteration or misbranding of any article of food sold under

the guaranty and shall be subject to the penalties provided

for violation of this subchapter. A guaranty shall not

operate as a defense to prosecution for a violation of the

provisions of this subchapter if the person holding the

guaranty continues to sell the same food after written or

printed notice from the secretary that the article is

adulterated or misbranded within the meaning of this

subchapter. However, if the person violated the provisions of

this subchapter by having stored, transported, exposed or

kept the article in a way or manner to render it diseased,

contaminated or unwholesome, the person may be proceeded

against for a violation.

(d)  Minor violations.--Nothing in this subchapter shall be

construed as requiring prosecution or institution of a

proceeding under this subchapter for minor violations of this

subchapter if the secretary believes that the public interest

will be adequately served in the circumstances by a suitable

written notice or warning.

(e)  Food establishments subject to local inspections.--

Penalties shall be established by the county, borough,

incorporated town or township for food establishments that are

subject to local inspection under section 5733(b) (relating to

rules and regulations).

§ 5726.  Detention and condemnation.

(a)  Marking detained food.--Whenever the secretary has

probable cause to believe that food is adulterated or

misbranded, the secretary shall affix to the container or

wrapping a tag or other marking. The tag or marking shall give

notice that:

(1)  The food may be adulterated or misbranded and shall

be detained.

(2)  It is unlawful to remove the food from the food

establishment or to dispose of it without approval of the

secretary.

(b)  Determination and appeal.--The secretary shall determine

whether a food detained under this subchapter may be sold,

delivered, consigned, held or offered for sale as is or whether

it shall be relabeled, reprocessed or destroyed within 40 days

of issuance of the detention order. Any determination by the

secretary that the food shall be relabeled, reprocessed or

destroyed shall be subject, within 30 days of the determination,

to appeal by the owner or operator of the food establishment or

the manufacturer or owner of the food to the court of common

pleas of the county in which the food was located. The detention

order shall expire after five working days from the issuance of

the order, unless the secretary confirms the order. The order

shall clearly and concisely state the facts on which it is

based.

(c)  Relabeling.--If the secretary determines that the

adulteration or misbranding can be corrected by a proper label

or reprocessing and the determination is not appealed within the

time permitted, the secretary may direct that the food be

released to the claimant to label or process under the

supervision of the secretary. The relabeled or reprocessed food

shall not be released into the market until the secretary has

executed an order indicating that the food is no longer in

violation of this subchapter.

(d)  Order for destruction.--Food detained under this

subchapter shall be destroyed by the owner under the supervision

of the secretary, if the secretary determines that the food is

unfit for human consumption and the food cannot be reconditioned

so as to be made fit for human consumption and the determination

is not appealed within the time permitted. Food detained under

this subchapter may be used as animal feed or for other

beneficial use, provided that such use is in compliance with

other applicable statutes, rules, regulations, standards and

orders. The owner shall pay all costs of destruction.

§ 5727.  Temporary permits.

Temporary permits granted by Federal agencies for interstate

shipment of experimental packs of food varying from the

requirements of definitions and standards of identity in Federal

acts shall be effective in this Commonwealth under the

conditions provided in the permits. The secretary may issue

intrastate permits where they are necessary to the completion of

an investigation and where the interests of consumers are

safeguarded for foods not complying with definitions, standards

of identity and State laws and regulations. The permits shall be

for a period not to exceed one year, although the permit may be

extended for a period of up to one additional year if a new

standard of identity has been applied for under section 5733

(relating to rules and regulations). The secretary may revoke a

permit after notice to the affected party if the application

contains misleading statements or if the secretary determines

that unfair competitive advantage is gained through the issuance

of the permit or that the need no longer exists for the permit.

§ 5728.  Adulteration of food.

A food shall be deemed adulterated:

(1)  If it bears or contains any poisonous or deleterious

substance which may render it injurious to health. However,

if the substance is not an added substance, the food shall

not be considered adulterated under this section if the

quantity of the substance in the food does not ordinarily

render it injurious to health.

(2)  If it bears or contains any added poisonous or added

deleterious substance which is unsafe within the meaning of

section 5731 (relating to poisonous or deleterious substances

and tolerances). This paragraph does not apply to a pesticide

chemical in or on a raw agricultural commodity, a food

additive or a color additive.

(3)  If it is a raw agricultural commodity and bears or

contains a pesticide chemical which is unsafe within the

meaning of section 5731, except that, where a pesticide

chemical has been used in or on a raw agricultural commodity

with an exemption granted or tolerance prescribed under

section 5731 or under any of the Federal acts and the raw

agricultural commodity has been subjected to processing such

as canning, cooking, freezing, dehydrating or milling, the

residue of the pesticide remaining in or on the processed

food shall, notwithstanding the provisions of section 5731

and this paragraph, not be deemed unsafe if the residue in or

on the raw agricultural commodity has been removed to the

extent possible in good manufacturing practice and the

concentration of the residue in the processed food when ready

to eat is not greater than the tolerance prescribed for the

raw agricultural commodity.

(4)  If it bears or contains any food additive which is

unsafe within the meaning of section 5731 or under any of the

Federal acts.

(5)  If it consists, in whole or in part, of any

diseased, contaminated, filthy, putrid or decomposed

substance or is otherwise unfit for food.

(6)  If it has been produced, prepared, packed or held

under unsanitary conditions so that it may have become

contaminated with filth or may have been rendered diseased,

unwholesome or injurious to health.

(7)  If it is, in whole or in part, the product of a

diseased animal or of an animal which has died otherwise than

by slaughter.

(8)  If its container is composed, in whole or in part,

of any poisonous or deleterious substance which may render

the contents injurious to health, unless the container is

fabricated or manufactured with good manufacturing practice

as that standard is defined and delineated by any of the

Federal acts and their regulations.

(9)  If it has been intentionally subjected to radiation,

unless the use of the radiation was in conformity with a

regulation or exemption in effect under section 5731 or under

one of the Federal acts.

(10)  If:

(i)  any valuable constituent has been, in whole or

in part, omitted or abstracted therefrom;

(ii)  any substance has been substituted wholly or in

part;

(iii)  damage or inferiority has been concealed in

any manner; or

(iv)  any substance has been added thereto or mixed

or packed so as to increase its bulk or weight or reduce

its quality or strength or make it appear better or of

greater value than it is.

(11)  If it bears or contains any color additive which is

unsafe within the meaning of section 5731 or under one of the

Federal acts.

(12)  If it bears or contains eggs processed by or egg

products derived from a manufacturing, processing or

preparing method wherein whole eggs are broken using a

centrifuge-type egg breaking machine that separates the egg's

liquid interior from the shell.

§ 5729.  Misbranding of food.

(a)  General rule.--A food shall be misbranded:

(1)  If its labeling is false or misleading in any way.

(2)  If it is offered for sale under the name of another

food.