Regular Session 2019-2020 Senate Bill 1089 P.N. 1588

PRINTER'S NO. 1588

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

1089

Session of

2020

INTRODUCED BY J. WARD, VOGEL, ARGALL, PHILLIPS-HILL, MENSCH,

MARTIN, BLAKE AND PITTMAN, MARCH 11, 2020

REFERRED TO AGRICULTURE AND RURAL AFFAIRS, MARCH 11, 2020

AN ACT

Repealing the act of September 1, 1965 (P.L.420, No.215),

entitled "An act for the protection of the public health, and

to prevent fraud and deception in the manufacture, sale,

offering for sale, exposing for sale, and possession with

intent to sell, of adulterated or deleterious frozen

desserts, providing for licensing, authorizing and regulating

the manufacture and sale of frozen desserts, conferring

powers and imposing duties upon the Department of

Agriculture, prescribing penalties, providing for the

enforcement thereof, and making repeals."

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The act of September 1, 1965 (P.L.420, No.215),

known as The Frozen Dessert Law, is repealed:

[Section 1. Declaration of Policy; Definitions.--(a) It is

hereby declared that the dairy industry is a paramount industry

of the Commonwealth 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

Commonwealth and of vital importance to the consuming public of

the Commonwealth, 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.

It is further declared to be the purpose of this act 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, and by

providing for rules and regulations which will effect their

orderly marketing and insure uniform and proper sanitary

standards.

(b) (1) For the purpose of this act, and for any rules,

regulations, definitions, standards of identity, or labeling

requirements 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, artificially sweetened ice milk, ice milk,

freezer made milk shakes, fruit sherbet, water ice, quiescently

frozen confection, quiescently frozen dairy confection, whipped

cream confection, bisque tortoni, mellorine frozen desserts 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 such products are customarily prepared or frozen,

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whether made with dairy or non-dairy products but shall not

apply to such commonly known or designated bakery products as

frozen cakes and pastries, cream pies and fillings and toppings,

meringue pie fillings and toppings, cream and ice box pies,

fruit and custard pie fillings, boston cream pie fillings, cream

puff fillings and custards, eclair and napoleon fillings and

custards, or the like.

(2) For the purpose of this act, a "frozen dessert plant"

shall mean any place, premises or establishment where frozen

dessert is manufactured, prepared or processed for distribution

or sale.

Section 2. Sale, Possession, etc., of Adulterated or

Unregistered Products.--(a) It shall be unlawful for any person

by himself or by his agents, servants or employes, to sell,

offer for sale, expose for sale or have in possession with

intent to sell, any frozen dessert:

(1) Which is adulterated within the meaning of this act;

(2) Which is not registered with the Department of

Agriculture as required in this act. The possession of any such

non-registered product shall be deemed prima facie evidence of

an intent to sell the same: Provided, however, That such

establishments as hotels, dining rooms and boarding houses where

the above named products are produced and consumed only on the

premises need not register such products with the Department of

Agriculture.

(b) It shall be unlawful to import into this Commonwealth

for sale any of the above named products coated or uncoated,

unless the same are registered with and the manufacture thereof

has been licensed by the Department of Agriculture where

provided in this act.

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Section 3. What Constitutes Adulteration.--Any frozen

dessert referred to in this act shall be deemed to be

adulterated within the meaning of this act if--

(1) It contains any substance or compound that is

deleterious to health.

(2) It contains any coloring substance deleterious to

health: Provided, however, That this clause shall not be

construed to prohibit the use of harmless coloring matter from a

list of permitted coloring material established by the

Department of Agriculture when such use does not conceal damage

or inferiority.

(3) It contains any deleterious flavoring matter or

flavoring matter not true to name.

(4) It is offered for sale from any container, compartment

or cabinet which contains any article other than frozen desserts

except that frozen desserts when properly wrapped or packaged by

the manufacturer and in unbroken packages or containers for

delivery to the consumer may be offered for sale from one or

more separate compartments of a refrigerated container or

cabinet of which other separate compartments contain properly

wrapped, unbroken and sealed packages of frozen foods ready for

delivery to the consumer.

(5) It falls below the standards of any of them fixed for

the particular product by the definition promulgated pursuant to

the authority granted by this act or is falsely labeled or

labeled contrary to regulations promulgated pursuant to this

act.

(6) It is manufactured under conditions not in conformity

with the provisions of section 6 of, or rules and regulations

promulgated by the department pursuant to, this act.

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Section 6. Frozen Dessert Plants Sanitary Standards.--It

shall be unlawful to operate any frozen dessert plant unless it

shall be maintained and operated with strict regard for the

purity and wholesomeness of the products produced therein. The

entire establishment and its appertaining premises, including

fixtures, furnishings, machinery, apparatus, implements,

utensils, receptacles and all equipment used in production,

keeping, storing, handling or distributing shall be maintained

and operated in a clean, sanitary manner. The equipment,

containers and piping shall be constructed of a smooth nontoxic

impervious corrosion resistant material and fabricated in such a

manner that there will be no contamination of the products

handled therein and they can be easily sanitized. All equipment

shall be kept in good working order and condition and shall be

located so as to facilitate cleaning and practically eliminate

the possibility of contamination. All equipment and utensils

used in the production of any product whose surface comes in

contact with any such product or any of the ingredients thereof

shall be thoroughly cleaned after using and sterilized

immediately prior to using. The clothing habits and conduct of

the employes shall be conducive to and promote cleanliness and

sanitation. There shall be proper, suitable and adequate toilets

and lavatories and equipment for cleansing, constructed,

maintained and operated in a clean and sanitary manner.

Section 7. Registration and Licensing of Plants.--(a) It

shall be the duty of every person, whether resident or

nonresident of this Commonwealth, operating a frozen dessert

plant or plants, whose products are sold or offered for sale in

Pennsylvania, to apply to the Department of Agriculture for a

license to do so and to register with the department each plant

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and every brand and type of product produced or manufactured in

such plant on or before the first day of January of each year,

or before any operation is undertaken, if after January first,

and to pay to the department at the time such application for

registration and license is filed an annual license fee which

shall expire on the following December thirty-first as follows:

For each frozen dessert plant producing annually not in

excess of one hundred thousand gallons, ten dollars ($10); in

excess of one hundred thousand gallons and not in excess of two

hundred and fifty thousand gallons, fifty dollars ($50); and in

excess of two hundred and fifty thousand gallons, one hundred

dollars ($100).

(b) The application for a license and registration shall be

made on a form to be supplied by the Department of Agriculture.

license and payment of required license fee and also approval of

sanitary conditions in a frozen dessert plant, the Department of

Agriculture shall issue to each applicant a license or

certificate of registration which shall expire at the end of

each calendar year and which will authorize the operation of

said plant for the calendar year or portion thereof for which a

license or certificate of registration shall be issued.

(d) Establishments such as hotels, dining rooms and boarding

houses where the products defined herein are produced and

consumed only on the premises need not comply with the licensing

and registration provisions of this act, but the other

provisions of this law and regulations passed pursuant thereto,

shall apply to such establishments.

Section 8. Revocation of Licenses.--The Department of

Agriculture is hereby authorized to revoke or suspend any

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license for cause and where it shall be properly ascertained

that the frozen dessert plant is not operated in a proper and

sanitary manner.

Section 9. Enforcement; Rules and Regulations.--(a) The

Department of Agriculture is charged with the enforcement of the

provisions of this act: Provided, however, That the Department

of Agriculture in the usual manner, or any person, committee or

association composed of persons affected by this act or rules or

regulations of the Department of Agriculture may institute such

action at law or in equity as may appear necessary to enforce

compliance with this act or any rule, regulation, definition or

standard of identity of the Department made pursuant to the

provisions of this act.

(b) The Department of Agriculture shall, after public

hearing, adopt, promulgate and enforce definitions and standards

of identity for frozen desserts and the mixes used in the

manufacture thereof together with rules and regulations

governing the packaging, labeling, sanitary requirements and all

other conditions relating to the manufacture, processing,

distribution and sale of frozen desserts, whether manufactured

or processed in a regular manufacturing plant, in a counter

freezer or otherwise, to carry out the purposes of this act, to

prevent deception in the sale of frozen desserts and to

safeguard the health of consumers. All definitions and standards

of identity and rules and regulations promulgated by the

Department shall be based on the hearing record and following

any hearing to consider definitions and standards of identity,

rules and regulations and labeling requirements or any of these,

the Department shall issue a recommended decision and shall

afford interested parties an opportunity to file exceptions

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based on the hearing record. The Department in issuing a final

decision shall rule on any exceptions filed, setting forth its

reasons therefor. Such regulations, when promulgated shall have

the force and effect of law. The Department is hereby authorized

to adopt insofar as applicable, the standards of identity and

definitions from time to time promulgated by the Secretary of

Health, Education and Welfare of the United States under the

Federal Act Defining and Standardizing Frozen Desserts.

Section 10. Violations; Punishment; Injunction.--(a) Any

person violating any of the provisions of this act or

definitions and standards of identity, rules or regulations made

pursuant thereto shall, for the first or second offense upon

conviction thereof in a summary proceeding, be sentenced to pay

a fine of not less than twenty-five dollars ($25), nor more than

one hundred dollars ($100), and costs of prosecution, or in

default of such fine and costs in the case of an individual, or

the officers and members of an association, partnership or

corporation, to undergo an imprisonment in the county jail of

not less than thirty days nor more than sixty days, and for a

third or subsequent offense within two years shall be guilty of

a misdemeanor and sentenced to pay a fine not exceeding one

thousand dollars ($1000), or in the case of an individual or the

officers and members of an association, partnership or

corporation, to undergo an imprisonment not exceeding one year,

or both, in the discretion of the court.

All fines and penalties imposed and recovered for the

violation of the provisions of this act shall be paid into the

State Treasury through the Department of Revenue and credited to

the General Fund.

(b) The Attorney General, at the request of the department,

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may in the name of the Commonwealth institute proceedings for

the purpose of enjoining the conduct of business in this

Commonwealth contrary to the provisions of this act.

Section 13. Short Title.--This act shall be known as and may

be cited as "The Frozen Dessert Law."

Section 13.1. Severability.--It is hereby declared to be the

legislative intent that if this act cannot take effect in its

entirety because of the decision of any court holding

unconstitutional any part, sentence or clause hereof, the

remaining provisions of the act shall be given full force and

effect as completely as if the part held unconstitutional had

not been included herein.

It is hereby declared as the intent of the Legislature that

every other part, sentence or clause of this act would have been

enacted had such unconstitutional provision not been included

herein.

Section 14. Effective Date.--This act shall take effect

immediately.]

Section 2. This act shall take effect in 60 days.

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