New York State Consolidated Laws
Agriculture & Markets
DAIRY PROMOTION ACT
Section 258-aa. Declaration of policy.
S 258-aa. Declaration of policy. (a) It is hereby declared that the
dairy industry is a paramount agricultural industry of this state, and
is an industry affecting the health and welfare of the inhabitants of
the state; that the continued existence of the 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 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:
(1) 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,
(2) To provide methods and means for the development of new and
improved dairy products, and to promote their use, and
(3) To this end, 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.
(b) Definitions. As used in this act the following terms shall have
the following meanings:
(1) "Commissioner" means the commissioner of agriculture and markets
of the state of New York.
(2) "Dairy products" means milk and products derived therefrom, and
products of which milk or a portion thereof is a significant part.
(3) "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.
(4) "Advisory board" means the persons appointed by the commissioner
from nominations from producers as herein defined to assist the
commissioner in administering a dairy promotion order.
(5) "Milk dealer" means any person who purchases or handles or
receives or sells milk, including individuals, partnerships,
corporations, cooperative associations, and unincorporated cooperative
(6) "Dairy promotion order" means an order issued by the commissioner,
pursuant to the provisions of this act.
(7) "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.
(c) Powers and duties of the commissioner.
(1) The commissioner shall administer and enforce the provisions of
this act, and shall have and may exercise any or all the administrative
powers conferred upon the head of a department. In order to effectuate
the declared policy of this act the commissioner may, after due notice
and hearing, make and issue a dairy promotion order, or orders.
(2) Such order or orders shall be issued and amended or terminated in
accordance with the following procedures:
(a) 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:
(i) Cooperatives may submit written approval of such order within a
period of one hundred twenty days after the commissioner has announced a
referendum on a proposed order, for such producers who are listed and
certified to the commissioner 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.
(ii) Any producer may obtain a ballot from the commissioner so that he
may register his own approval or disapproval of the proposed order.
(iii) A producer who is a member of a cooperative which has notified
him of its intent to approve or not to approve of a proposed order, and
who obtains a ballot and with such ballot expresses his approval or
disapproval of the proposed order, shall notify the commissioner as to
the name of the cooperative of which he is a member, and the
commissioner shall remove such producer`s name from the list certified
by such cooperative.
(iv) In order to insure that all milk producers are informed regarding
a proposed order, the commissioner shall notify all milk producers that
an order is being considered and that each producer may register his
approval or disapproval with the commissioner either directly or through
(v) The commissioner may appoint a referendum advisory committee to
assist and advise him in the conduct of the referendum. Such committee
shall review referendum procedures and the tabulation of results, and
shall advise the commissioner of its findings. The final certification
of the referendum results shall be made by the commissioner. The
committee 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.
(b) 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 ef-
fective 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 paragraph two of subdivision (c) of this section.
(3) The commissioner shall administer and enforce any such dairy
promotion order while it is in effect, for the purpose of:
(a) Encouraging the consumption of milk and dairy products by
acquainting consumers and others with the advantages and economy of
using more of such products,
(b) Protecting the health and welfare of consumers by assuring an
adequate supply of milk and dairy products,
(c) Providing for research programs designed to develop new and
improved dairy products,
(d) 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,
(e) Carrying out, in other ways, the declared policy and intent of
(d) Provisions of dairy promotion orders. Any dairy promotion order or
orders may contain, among others, any or all of the following:
(1) 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 per cent 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 two of subdivision (c) of
this section, the commissioner, upon written petition of no less than
twenty-five per cent of producers in the area, either as individuals or
through cooperative representation, 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 two of
subdivision (c) 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.
(2) 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.
(3) 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
(4) 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.
(5) Provision for the auditing of the records of such milk dealers for
the purpose of verifying payment of producer assessments.
(6) Provision for an advisory board as hereinafter indicated.
(7) Such other provisions as may be necessary to effectuate the
declared policies of the act.
(e) Matters to be considered. In carrying out the provisions of this
act and particularly in determining whether or not a dairy promotion
order shall be issued, the commissioner shall take into consideration,
among others, facts available to him with respect to the following:
(1) The total production of milk in the area and the proportion of
such milk being utilized in fluid form and in other products,
(2) The prices being received for milk by producers in the area,
(3) The level of consumption per capita for fluid milk and of other
(4) The purchasing power of consumers,
(5) Other products which compete with milk and dairy products and
prices of such products.
(f) 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. He 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 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.
(g) Prior assessments. Prior to the effective date of any dairy
promotion order as provided in this act, the commissioner may require
that cooperative associations which have petitioned for such an order
and who have approved of the issuance of such an order, to deposit with
the commissioner such amounts as he 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
commissioner in the same manner as other funds received by him pursuant
to this article and the commissioner shall reimburse those who paid
these prior assessments from other funds received by him pursuant to
(h) Status of funds. Any moneys collected under any market order
issued pursuant to this article shall not be deemed to be state funds
and shall be deposited in a bank or other depository in this state,
approved by the commissioner and the state comptroller, allocated to
each dairy promotion order under which they were collected, and shall be
disbursed by the commissioner only for the necessary expenses incurred
by the commissioner with respect to each separate order, all in
accordance with the rules and regulations of the commissioner. All such
expenses shall be audited by the state comptroller at least annually and
within thirty days after the completion thereof the state comptroller
shall give a copy thereof to the commissioner. Any moneys remaining in
such fund allocable to a particular order, after the termination of such
order and not required by the commissioner to defray the expenses of
operating such order, may in the discretion of the commissioner be
refunded on a pro-rata basis to all persons from whom assessments
therefor were collected; provided, however, that if the commissioner
finds that the amounts so refundable are so small as to make
impracticable the computation and refunding of such moneys, the
commissioner may use such moneys to defray the expenses incurred by him
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 commissioner may pay such moneys to any
organization or institution as provided in paragraphs (2) or (3) of
subdivision (d) of this section.
(i) Budget. The commissioner 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 per
cent per hundredweight of the gross value of milk marketed by producers
in the area covered by the order.
(j) Advisory board.
(1) Any dairy promotion order issued pursuant to this article shall
provide for the establishment of an advisory board to advise and assist
the commissioner in the administration of such order. 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.
(2) No member of an advisory board shall receive a salary but shall be
entitled to his actual and reasonable expenses incurred while performing
his duties as authorized herein.
(3) The duties and responsibilities of the advisory board shall be
prescribed by the commissioner and he may specifically delegate to the
advisory board, by inclusion in the dairy promotion order, all or any of
the following duties and responsibilities:
(a) The recommendation to the commissioner of administrative rules and
regulations relating to the order.
(b) Recommending to the commissioner such amendments to the order as
(c) The preparation and submission to the commissioner of an estimated
budget required for the proper operation of the order.
(d) Recommending to the commissioner methods for assessing producers
and methods for collecting the necessary funds.
(e) Assisting the commissioner in the collection and assembly of
information and data necessary for the proper administration of the
(f) The performance of such other duties in connection with the order
as the commissioner shall designate.
(k) Rules and regulations enforcement.
(1) Rules and regulations. The commissioner may, with the advice and
assistance of the advisory board, make and issue such rules and
regulations as may be necessary to effectuate the provisions and intent
of this article and to enforce the provisions of any dairy promotion
order, all of which shall have the force and effect of law.
(2) Enforcement. The commissioner may institute such action at law or
in equity as may appear necessary to enforce compliance with any
provision of this article, or any rule or regulation, or dairy promotion
order committed to his administration, and in addition to any other
remedy under article three of this chapter or otherwise, 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 or rules, or to
the supreme court in the third judicial district.