Agriculture_Markets
Andrew M. Cuomo, Governor | Richard A. Ball, Commissioner
 
 

New York State Consolidated Laws

Agriculture & Markets

 
 ARTICLE 4.
 
Dairy Products.
 
Section 46. Declaration of policy.
 46-a. Regulations.
 47. Care and feed of cows, and care and keeping of milk.
 47-a. Regulating the handling and sale of products made from
 recovered milk fat and solids.
 48. Receptacles to be cleansed before returning; receptacles
 may be seized; evidence; violation.
 49. Insanitary cans and receptacles condemned.
 50-e. Legislative finding and declaration of policy.
 50-f. Definitions and standards of identity.
 50-g. Licenses to manufacturers of melloream.
 50-h. Entry, inspection and investigation.
 50-i. Labeling of melloream and vegetable oil blends.
 50-j. Serving melloream, vegetable oil blends and cream in
 restaurants and other public eating places.
 50-k. Rules and regulations.
 51. Milk inspection.
 52. Presumptions in regard to cream and skim milk.
 54. Regulations in regard to manufactories, plants or places
 where milk or cream is brought or received.
 55. Skimmed milk, whey, buttermilk or milk container or plant
 equipment rinsings to be heated before being used for
 feeding.
 56. Determination of the content of milk and/or cream where
 purchase or settlement therefore is made on the basis of
 such content.
 56-a. Taking of composite sample; record of tests.
 56-b. Determination of bacteria in milk and/or cream where
 purchase or settlement is made therefore on the basis of
 bacterial count.
 57. Licensing of persons in charge of milk-gathering stations,
 manufactories or plants; licensing of persons sampling
 milk and/or cream and/or determining weight or volume of
 milk and/or cream; and of persons making milk component
 tests.
 57-a. Licensing of persons making bacterial counts of milk
 and/or cream or making tests of milk and/or cream to
 detect certain abnormalities.
 59. Powers of the department concerning oleomargarine.
 61. Manufacture, sale, and use of oleomargarine.
 62. Coloring matter, dairy terms, size of package, labeling,
 false advertising.
 63. Labeling of imitation cheese; imitation cheese food and
 products containing imitation cheese.
 67. Manufacturers identification markings and grade brands for
 cheese.
 67-b. Pasteurization of cheese.
 68. Use of false brand prohibited.
 69. County trade marks.
 70. Branded cans, jars, bottles, cases, boxes or barrels not
 to be sold, remarked or used without consent of owner.
71.         Registration of mark; defacing mark; seizure.
 
 46. Declaration of policy. It is hereby declared that the dairy
 industry is a paramount industry of the state and the production,
 processing, packaging, distribution and sale of milk products has become
 an enterprise 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
 that milk and milk products have long been accepted by the consuming
 public as wholesome and nutritious articles of food. Advances in food
 technology have resulted in the development of a variety of products for
 similar usage including dairy foods with different composition than
 products now defined as well as products made with vegetable oils and
 proteins from sources other than dairy products, products which are
 similar in appearance, odor, or taste to dairy products, and which are
 difficult to differentiate from dairy products. It is further declared
 to be in the interest of the dairy industry and the consuming public to
 promote and encourage the development of new and different dairy
 products with varying proportions of fat, solids and other ingredients,
 including wholesome ingredients not now permitted in dairy products but
 which may be used without restriction in non-dairy products which are
 similar in appearance, odor or taste to dairy products. It is also
 declared to be in the interest of the dairy industry and particularly in
 the interest of the consuming public, that to the fullest extent
 possible, there be uniformity of definitions and standards for milk and
 milk products and in the labeling of milk and milk products between the
 various states to the end that there may be free movement of milk and
 milk products between states, and further 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.
 
  46-a. Regulations. The commissioner shall, after public hearing,
 promulgate definitions and standards for milk and milk products, and for
 products other than milk and milk products, which products are similar
 in appearance, odor or taste to milk and milk products, together with
 rules and regulations for the packaging and labeling of all such
 products, and other conditions relating to the manufacture, processing,
 packaging, distribution and sale of all such products including
 sanitation pertaining to manufacture, processing, handling,
 distribution, surroundings, grounds, equipment, personnel and
 pasteurization of such products. Such regulations shall apply to all
 sources including farms where such milk is produced. A copy of all such
 rules and regulations governing sanitation shall be provided to the
 state commissioner of health fifteen days prior to the public hearing.
 The commissioner is further empowered to promulgate rules and
 regulations by which milk may be standardized, including the plants at
 which such standardization may be done and may provide that
 standardization may be done only at plants which are duly licensed and
 specifically approved by the commissioner to perform such
 standardization. The commissioner may provide in such rules and
 regulations for different standards and labeling for products
 manufactured within the state and sold out of state.

 

  47. Care and feed of cows, and care and keeping of milk. No person
 shall keep cows, for the production of milk for market or for sale or
 exchange, or for manufacturing the milk or cream from the same into any
 article of food, in a crowded or unhealthy condition or in unhealthful
 or unsanitary surroundings and no person shall keep such cows or the
 product therefrom in such condition or surroundings or in such places as
 shall cause or tend to cause the produce from such cows to be in an
 unclean, unhealthful or diseased condition, if the produce from such
 cows is to be sold, offered or exposed for sale upon the markets for
 consumption or to be manufactured into any food product, nor shall such
 cows or the produce therefrom be handled or cared for by any person
 suffering with or affected by an infectious or contagious disease, nor
 shall any such cows be fed on any substance that is in a state of
 putrefaction or fermentation, or upon any food that is unhealthful or
 that produces or may produce impure, unhealthful, diseased or
 unwholesome milk. But this section shall not be construed to prohibit
 the feeding of ensilage.
 No person having milk in his possession for the purpose of selling the
 same for consumption as such or for manufacturing the same into butter,
 cheese, evaporated or condensed milk or other food shall keep the same
 in utensils, cans, vessels, rooms or buildings that are unclean or have
 insanitary surroundings or drainage or in any condition whatsoever that
 would tend to produce or promote conditions favorable to unhealthfulness
 or disease. The commissioner shall notify all persons violating this
 section to clean said utensils, cans, vessels, rooms or buildings or to
 so improve the sanitary conditions that the foregoing provisions will
 not be violated; and if such notice is complied with within ten days no
 presecution, civil or criminal, for a violation of this section shall be
 instituted.
 
  47-a. Regulating the handling and sale of products made from
 recovered milk fat and solids. Notwithstanding any other provisions of
 this chapter, it shall not be unlawful to recover milk fat and other
 milk solids
 (a) from mixtures of milk and potable water produced in the operation
 of high-temperature short-time pasteurizers or
 (b) from rinsings or drippings recovered from cans or equipment used
 in the handling of milk and milk products, provided such rinsings or
 drippings do not contain excessive foreign substance, or
 (c) from whey
 or to use such fat and such other milk solids in
 (1) products in the manufacture of which milk fat, other milk solids
 and water are permitted ingredients, or
 (2) in the manufacture of butter and skimmed milk powder (nonfat
 dry-milk solids).
 The commissioner is hereby authorized to promulgate regulations
 governing the handling, manufacturing and marketing of such mixtures,
 rinsings, drippings and whey and the products made therefrom, and may
 prescribe standards for such products.
 
 
  48. Receptacles to be cleansed before returning; receptacles may be
 seized; evidence; violation. Whenever any can or receptacle is used for
 transporting or conveying milk, cream or curd to market for the purpose
 of selling or furnishing the same for consumption as human food, or for
 manufacturing into human food, which can or receptacle, when emptied, is
 returned or intended to be returned to the person so selling, furnishing
 or shipping such substance to be again thus used, or which is liable to
 continued use in so transporting, conveying, selling or shipping such
 substance as aforesaid, the consumer, dealer or consignee using, selling
 or receiving the milk, cream or curd from such can or receptacle, shall,
 before so returning such can or receptacle remove all substances foreign
 to milk therefrom, by rinsing with water or otherwise. When any such
 milk, cream or curd is sold within any city of this state or shipped
 into any such city, the fact of such shipment or sale shall be prima
 facie evidence that the same was so shipped or sold for consumption as
 human food or to be manufactured into human food. When any such can or
 receptacle is returned or delivered or shipped to any person or creamery
 so selling such substance within, or shipping the same into such city,
 it shall be deemed that such can or receptacle is liable to such
 continued use in so selling or shipping such substance therein for
 consumption as human food within the meaning and purposes of this
 article. No person shall place or suffer to be placed in any such can or
 receptacle any sweepings, refuse, dirt, litter, garbage, filth or any
 other animal or vegetable substance, nor shall any such consignee or
 other person through himself, his agent or employee, bring or deliver to
 any person or railroad or other conveyance any such can or receptacle
 for the purpose of such return, or any milk, cream or curd can or
 receptacle for the purpose of delivery or shipment to any person or
 creamery engaged in so selling or shipping such substances for
 consumption as human food, which can or receptacle contains such foreign
 substance or which has not been rinsed as herein provided. The word
 "curd" as used in this article applies to the substance otherwise known
 as "pot cheese" or "cottage cheese." Whenever any such can or receptacle
 is used, returned, delivered or shipped in violation of this article
 every such use, return, delivery or shipment of each such can or
 receptacle shall be deemed a separate violation thereof. Such cans or
 receptacles so used, returned, delivered or shipped in violation of this
 article may be seized by the commissioner, his assistants or agents and
 held as evidence of such violation.

 

  49. Insanitary cans and receptacles condemned. All cans, or
 receptacles used in the sale of milk, cream or curd for consumption, or
 in transporting or shipping the same to market or the delivery thereof
 to purchasers for consumption as human food, when found by the
 commissioner or his assistants or agents to be in unfit condition to be
 so used by reason of being worn out, badly rusted, or with rusted inside
 surface, or unclean or insanitary or in such condition that they can not
 be rendered clean and sanitary by washing, and will tend to produce or
 promote in milk, cream or curd when contained therein, bad flavors,
 unclean or unwholesome conditions favorable to unhealthfulness or
 disease, shall be condemned by the commissioner or his assistants or
 agents. Every such can or receptacle when so condemned shall be marked
 by a stamp, impression or device, designed by the commissioner, showing
 that it has been so condemned, and when so condemned shall not
 thereafter be used by any person for the purpose of so selling,
 transporting or shipping milk, cream or curd.
 
  50-e. Legislative finding and declaration of policy. It is hereby
 declared that cream, half and half, milk and mixtures of milk and cream
 have long been accepted by the consuming public; recognized as wholesome
 and nutritious articles of food, and their composition generally
 understood by consumers.
 Advances in food technology have resulted in the development of a
 variety of products for similar usage including dairy foods of lower
 butterfat and blends made with vegetable oils and with proteins from
 sources other than dairy products; products which are so similar in
 appearance, odor and taste that they are difficult to differentiate from
 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 with a highly regulated dairy industry which is
 of considerable economic importance to the economy of the state and to
 prevent confusion and deception in the sale of such foods by
 establishing definitions and standards of identity for such foods, and
 by providing for rules and regulations which will effect their orderly
 marketing and insure similar sanitary standards.
 It is the further intent of the legislature, in view of the well known
 nutritional qualities of whole milk (including standardized milk) and
 other dairy products that the burden of proof of nutritional claims of
 products offered for sale to consumers which have the appearance, odor
 and taste of whole milk (including standardized milk) or other dairy
 products is placed on the persons or corporations offering the product
 or products for sale to consumers.
 
  50-f. Definitions and standards of identity. As used in this section
 the terms "melloream" or "a vegetable oil blend" mean any substance,
 mixture or compound regardless of the name by which it is represented,
 which contains vegetable fats or oils and proteins derived from animal
 or vegetable sources, and whose appearance, odor and taste is similar to
 cream, half and half, milk or a mixture of milk and cream, to the point
 of rendering these products difficult to differentiate from each other.
 
 
  50-g. Licenses to manufacturers of melloream. 1. No person shall
 engage in the manufacture or production of melloream in the state of New
 York or for sale or distribution in the state of New York unless duly
 licensed as provided in this article or unless licensed as a milk dealer
 pursuant to article twenty-one of the agriculture and markets law.
 2. Application for a license shall be made upon a form prescribed by
 the commissioner and shall include such facts concerning the applicant's
 status and operations as are deemed necessary by the commissioner for
 administration of this article. A license shall be for a period not to
 exceed two years and a renewal of license must be duly made at least
 thirty days in advance of the expiration date. The license fee pursuant
 to this article for the license period for a person who is not otherwise
 licensed as a milk dealer pursuant to article twenty-one of the
 agriculture and markets law shall be fifty dollars for each manufactory,
 plant or place where melloream is manufactured or produced.
 3. No license issued pursuant to this article to a manufacturer of
 melloream shall be denied or revoked unless the commissioner finds by a
 preponderance of evidence, after due notice and opportunity of a hearing
 to the applicant or licensee, that such person is not in compliance with
 or is in violation of any of the provisions of this article or
 regulations of the commissioner governing the manufacture and labeling
 of melloream.
 
  50-h. Entry, inspection and investigation. Any person designated for
 the purpose shall have access to and may enter at all reasonable hours
 all places where melloream is being manufactured, packaged or stored for
 sale or distribution in the state of New York, where melloream is
 otherwise being handled or sold in the state of New York, or where the
 books, papers, records or documents relating to such transactions are
 kept, and shall have power to inspect and copy the same, and may
 administer oaths and take testimony for the purpose of ascertaining
 facts which in the judgment of the commissioner are necessary to
 administer this article. The commissioner may inspect a plant beyond the
 boundary of the state, and when he does, the applicant or licensee
 shall, prior to such inspection, agree to pay, in addition to the
 license fee provided pursuant to subdivision two of section fifty-g of
 this article, fees for the inspection of the plant by the commissioner
 or his representatives. Such fees shall be twenty-five dollars for each
 day consisting of seven hours or part thereof during which an employee
 of the commissioner spends traveling to and from and inspecting the
 plant. In addition the applicant or licensee shall agree to pay all
 necessary expenses including but not limited to expenses for traveling,
 lodging and meals. The commissioner may, if satisfied with the adequacy
 of inspection by some other regulatory agency, and if satisfied that
 there is substantial compliance with the regulations of the
 commissioner, forego actual inspection of such out-of-state plant or
 plants.
 
  50-i. Labeling of melloream and vegetable oil blends. Whenever the
 brand name of melloream or a vegetable oil blend, as defined in section
 fifty-f, appears on the container so conspicuously as to be seen under
 customary conditions of purchase, there shall immediately and
 conspicuously precede or follow the brand name or product designation
 without intervening written, printed or graphic matter in letters at
 least one-third of the size of the brand name and on a contrasting
 background, any one of the following statements: "melloream," "a
 vegetable blend," "a vegetable oil product," "not a dairy product," and
 the words "milk," "cream," "half and half," or "a mixture of milk and
 cream" shall not be used on the package label of melloream or vegetable
 oil blends except to the extent that there shall also appear on the
 label an accurate list of ingredients. In the event that a product under
 this section shall contain an ingredient which has been derived from
 milk or a milk by-product or during its formation has used milk or a
 milk by-product, the ingredient labeling shall after specifying the name
 of the ingredient, place in parentheses the words "milk derived".
 Persons or corporations offering such products for sale shall upon
 request by the commissioner submit to him evidence in support of any
 nutritional claims made for such products through advertising, labeling
 or public announcement, and failure to submit such evidence or to revise
 such claims in the manner suggested by the commissioner shall be
 presumed to be a misbranding of said products within the meaning of
 section two hundred one of this chapter.

 

 
  50-j. Serving melloream, vegetable oil blends and cream in
 restaurants and other public eating places. Whenever melloream, a
 vegetable oil blend, cream, half and half, milk or a mixture of milk and
 cream is served in a restaurant, hotel, boarding house, lunch counter,
 place of entertainment, public eating place or any establishment where
 food is sold for consumption on the premises, the name of the product
 served should be clearly stated by label, sign or menu statement in a
 manner likely to be read by the customer.
 
 
  50-k. Rules and regulations. The commissioner shall from time to
 time, after inquiry and public hearing, promulgate and adopt rules and
 regulations to supplement and give full effect to the provisions of
 section fifty-e. Such rules and regulations shall establish sanitary
 regulations pertaining to the manufacture, packing and distribution of
 melloream and vegetable oil blends, including the sanitary condition of
 buildings, ground, and equipment where melloream and vegetable oil
 blends are manufactured and the sanitary condition of the ingredients
 and of the persons in direct physical contact with melloream and
 vegetable oil blends during manufacture. Such sanitary rules and
 regulations shall be equal to those established for dairy products.
 
 
  51. Milk inspection. The commissioner or his agent, in inspecting
 milk for the purpose of analysis to determine the percentage of fat or
 other milk solids, shall take duplicate samples thereof and shall seal
 both samples, and shall tender, and, if accepted, deliver one sample to
 the person from whom the milk was taken. When samples are taken from the
 producer of the milk sampled or his agent, at a place other than the
 dairy where the milk was produced, the commissioner or his agent shall
 within ten days thereafter, with the consent of the producer, take
 duplicate samples of the mixed milk of the herd of cows from which the
 milk first sampled was drawn, and shall deliver one such sample to the
 producer or his agent and shall submit the other to analysis. If upon
 analysis it proves to contain no higher percentage of milk solids, or no
 higher percentage of fat, or has no lower freezing temperature than the
 sample first taken, then no action shall lie against the producer for
 violation of standards as established by the commissioner pursuant to
 the provisions of section forty-six-a. If the producer refuses to allow
 such herd sample to be taken, then the producer shall be precluded from
 offering any evidence that the milk from which the first sample was
 taken was just as it came from the cow. Where a sample of milk taken by
 the commissioner or his agent consists of the entire contents of a
 container unopened at the time of taking, no duplicate need be taken or
 tendered or delivered.
 
 
  52. Presumptions in regard to cream and skim milk. When cream is
 separated or skimmed from milk at any station or establishment where
 milk is received from producers for the purpose of selling the same or
 shipping the same to market for consumption as food and the supply of
 milk on hand thereat at the time of the next regular daily shipment of
 milk therefrom, consisting of the total amount of milk in such shipment,
 together with that remaining on hand immediately after such shipment, is
 not thereby decreased or correspondingly less than the total quantity
 received during any period extending from some point of time before such
 skimming was done until the time of such shipment, together with the
 amount of milk on hand at the commencement of such period, and such
 decrease is not equal in amount to the quantity of milk that must have
 been used in so separating such cream in addition to the quantity
 otherwise there used or disposed of during such period, such fact is
 conclusive that skim milk or other foreign substance was added to such
 milk supply within such period and shall be presumptive evidence within
 the meaning of this section that the same was added to each can or
 vessel of milk in such shipment. When cream or skim milk is found to
 have been on the premises of any such station or establishment or is
 sold or shipped therefrom, such cream or skim milk so found or so sold
 or shipped therefrom shall be presumed to have been produced by
 separating or skimming at such station or establishment. In any action
 or proceeding relative to the adulteration of milk by removing cream
 therefrom or adding skim milk or other foreign substance thereto, it
 shall be presumed that when cream has been produced by so skimming or
 separating or butter has been manufactured, there was made at least five
 quarts of milk in the production of each quart of cream so produced and
 there was necessarily so produced thereby at least four quarts of skim
 milk to each quart of cream so produced, and that there was used at
 least nine quarts of milk in the production of each pound of butter so
 manufactured.
 
 
  54. Regulations in regard to manufactories, plants or places where
 milk or cream is brought or received. No person shall sell, supply or
 bring to any butter or cheese factory or to any plant or place which
 manufactures a food product from milk or which ships or sells milk for
 consumption any milk diluted with water, or any unclean, impure,
 unhealthy, adulterated or unwholesome milk, or milk from which any of
 the cream has been taken, except pure skim milk to skim-cheese
 factories. No person shall sell, supply or bring to be manufactured to
 any butter or cheese factory or to any plant or place which manufactures
 a food product from milk or which ships or sells milk for consumption
 any milk that is sour or from which has been kept back any part of the
 milk commonly known as strippings, except pure skim milk to skim-cheese
 factories. The owner or proprietor or the person having charge of any
 such manufactory, plant or place where milk is received for any such
 purpose, not buying all the milk used by him, shall not use for his own
 benefit, or allow any of his employees or any other person to use for
 his own benefit, any milk, cream, butter or cheese or any other product
 thereof, brought to such factory, without the consent of the owners of
 such milk or the products thereof. Every such manufactory, plant or
 place not buying all the milk used, shall keep a correct account of all
 the milk or cream daily received, of the number of packages of butter
 and cheese made each day, and the number of packages and aggregate
 weight of cheese and butter disposed of each day; which account shall be
 open to inspection to any person who delivers milk to such manufactory,
 plant or place. Every purchaser or receiver of milk from the producer
 thereof, for manufacturing purposes or for reselling the same, shall on
 written request therefor, tender daily thereafter at time of delivery to
 such producer, or to the person delivering such milk to such purchaser
 in behalf of such producer, a written statement of the amount of milk so
 received or purchased until or unless such producer notifies such
 purchaser in writing that he no longer desires such statement; such
 statement shall give, first, the name of the producer or seller, second,
 the date of delivery, third, the amount so delivered, fourth, shall be
 signed by the purchaser or his duly authorized representative; such
 statement shall be given in the terms of the unit used as a basis for
 determining the value thereof. Such purchaser or receiver shall, at each
 periodical time of payment for such milk, give each such producer, so
 delivering milk, a statement showing the amount of milk delivered during
 the periodical time for which payment is made, and the average per
 centum of butter fat test of same, provided payment is made on basis of
 butter fat content.
 Any person having charge of a milk gathering station or establishment
 as aforesaid shall keep a true and correct monthly record of the
 receipts of milk or other dairy products received at such station or
 establishment, and also a true and correct monthly record of all sales
 or shipments of milk, cream or other dairy products shipped or sold from
 such station or establishment, and shall also keep a true and correct
 monthly record of the amount of skim milk produced in such station or
 establishment and of the disposition of said skim milk. Such record
 shall be preserved at such station or establishment for at least two
 years after the same shall have been made and such records shall at all
 times be open to the inspection of the commissioner, his assistants or
 agents. When cream is sold or shipped from any such station or
 establishment so selling or shipping milk for consumption as aforesaid,
 each original bottle or package of one quart or less of cream so shipped
 or sold shall bear a label securely attached to the side of such bottle
 or package on which shall be conspicuously printed the word "cream" in
black letters of at least one-fourth of an inch in length or else the 
word "cream" shall be blown in the side of such bottle in plain raised 
letters of at least one-half an inch in length, and the top and side of 
each and every other original package or can containing cream or 
original crate or case containing bottles of cream so shipped or sold 
shall bear a label securely attached on which shall be conspicuously 
printed the word "cream" in black letters of at least one inch in length 
and also a plainly written or printed statement on the label stating 
from whom and what station the same is shipped and the name of the 
consignee and point of destination and date on which the cream therein 
was produced by such separation or skimming. The shipment of each and 
every such original package of cream so shipped and not so labeled as 
herein required shall constitute a separate violation.
 
  55. Skimmed milk, whey, buttermilk or milk container or plant
 equipment rinsings to be heated before being used for feeding. Any
 person operating any butter factory, cheese factory or other milk plant,
 before delivering to any person any skimmed milk, whey, buttermilk or
 milk container or plant equipment rinsings, to be used for the feeding
 of domestic animals, shall cause such by-product to be uniformly heated
 to a temperature of not less than one hundred and forty-three degrees
 Fahrenheit and held at such temperature for at least thirty minutes, or
 to be uniformly heated to a temperature of one hundred and seventy
 degrees. No such by-product shall be used for the feeding of domestic
 animals until heated as provided herein.
 
  56. Determination of the content of milk and/or cream where purchase
 or settlement therefor is made on the basis of such content. 1. The
 commissioner shall, after public hearing, prescribe, by rules and
 regulations, the methods, equipment, and procedures, including the
 calibration and use of electronic equipment, which shall be used in
 determining the percentage of the components of milk and/or cream where
 the result of such determination is to be used wholly, or in part, as a
 basis for payment or settlement for such milk and/or cream, or where the
 proceeds of co-operative creameries or such milk-receiving or
 manufacturing plants are allotted on the basis of the determination of a
 component or components of milk, or where the result of such test is
 used for the purpose of official inspection or for public record.
 2. Whenever the amount of a milk component or components contained in
 milk and/or cream is used wholly or in part as a basis for payment or
 settlement for such milk and/or cream, or whenever such component, or
 components, of milk and/or cream are made a matter of public record or
 official inspection, no person or persons shall report or record a
 greater or lesser percentage or average percentage of such milk
 component than is actually contained in such milk and/or cream. The
 commissioner or persons employed by him for that purpose may at any time
 inspect the equipment and assist in making tests of milk and/or cream
 received at any milk-receiving or manufacturing plant or other place of
 testing for the purpose of determining the accuracy of tests so made.
 3. Any person or persons using other than the method, equipment and
 procedures prescribed by the commissioner pursuant to this section, or
 crediting any patron delivering milk and/or cream with a greater or
 lesser percentage or average percentage of a milk component than is
 actually contained in such milk and/or cream so delivered and as
 determined by such prescribed method or methods shall be deemed to have
 violated the provisions of this chapter.
 4. For the purposes of this article, components of milk or cream shall
 include non-fat solids, milk fat, protein, lactose and total solids
 contained in milk or cream.
 
  56-a. Taking of composite sample; record of tests. Corporations,
 associations or persons buying milk and/or cream from producers of milk
 and/or cream to be paid for on the basis of the percentage of a
 component or components of such milk or cream and taking samples
 therefrom to form a composite sample to be tested periodically to
 determine its value on such basis, shall, at the request of the
 producer, or of his agent designated in writing, take such samples in
 duplicate and subject them to the same treatment. At the end of the
 period for which the composite samples were taken, such corporation,
 association or person shall tender same to the producer thereof, or to
 his authorized agent, and give such producer, or his authorized agent,
 the choice of one of the two composite samples so taken. Such producer,
 or his authorized agent, may send such duplicate composite sample,
 properly marked for identification of the component or components upon
 which payment or settlement for the milk is based and with the
 producer's name and post office address, to the New York State food
 laboratory of the department within three days from the receipt thereof.
 Such laboratory shall cause such sample to be tested for the per centum
 of such component or components contained therein, and shall cause a
 report of such test to be sent to the producer or to his authorized
 agent, from whom it was received within ten days thereof, or as soon
 thereafter as possible. Persons testing composite samples of milk and/or
 cream taken from milk or cream bought or received from producers, where
 the value thereof is determined by the percentage of a component or
 components contained in such milk or cream, shall preserve intact the
 remaining portion of the sample from which the test was made, and in the
 case of milk keep the same for at least ten days and in the case of
 cream keep the same for at least one day after the making of such test,
 for the purpose of permitting the commissioner or his duly authorized
 representative to examine and test the same. Whenever a producer shall
 designate in writing his authorized agent, the period for which such
 authorization shall be in effect shall be stated and the time or times
 when such duplicate composite sample or samples shall be tendered to the
 authorized agent. The corporation, association or person buying such
 milk and/or cream shall permit the authorized agent to collect the
 samples so chosen.
 Persons making such tests of samples of milk and/or cream so purchased
 or received shall, immediately after such tests are completed, prepare a
 list containing the names or numbers of the producers whose milk and/or
 cream was so tested, and place opposite each such producer's name or
 number the percentage of each component or components, upon which
 payment or settlement is based, found to have been contained in the
 sample of milk and/or cream representing the milk and/or cream delivered
 by each such producer. Such lists so prepared shall be made with
 indelible pencil or permanent ink and shall be filed in the plant or
 place where such milk and/or cream is bought or received, and each such
 list shall be duly signed by the person making such tests and preparing
 such lists, and such person shall place beneath his signature the number
 of the state license under which he is testing.
 All such lists shall be kept as a record for at least one year and
 shall be open to examination at all times by the commissioner or his
 duly authorized representative. At any time, upon request of any
 producer, or his authorized agent, the purchaser or receiver of such
 milk and/or cream shall permit such producer to examine such part of
 said record as contains information concerning the samples of milk
 and/or cream representing the milk and/or cream delivered by such
 producer. Every such purchaser or receiver of milk and/or cream from the
 producer thereof shall, on written request therefor, made by the 
 producer or by his authorized agent, mail or deliver to the producer or 
 his authorized agent, at each time thereafter when such list is made a 
 written statement of the percentage of the component or components, upon 
 which payment or settlement was based, found to have been contained in 
 the sample or samples representing the milk and/or cream delivered by 
 such producer. Without the written permission of the commissioner, no 
 sample of milk and/or cream so tested by the purchaser or his representative 
 shall be tested at a plant or place other than the one where 
 received, nor without such permission shall any such sample of milk be 
 removed from any such plant or place where tested within ten days from 
 the date of testing, nor shall any such sample of cream be removed 
 therefrom within one day from such date of testing.

 

  56-b. Determination of bacteria in milk and/or cream where purchase
 or settlement is made therefor on the basis of bacterial count. In
 milk-receiving or manufacturing plants and other places using methods
 approved by the commissioner for determining the bacterial count in milk
 and/or cream, where the result of such determination is to be used
 wholly or in part as a basis for payment or settlement for such milk or
 cream, or where the proceeds of co-operative creameries or such
 milk-receiving or manufacturing plants are allotted on the basis of the
 bacterial count, no pipette or syringe shall be used in such
 determination unless the same has been legibly and indelibly marked with
 the letters "N. Y." by the commissioner or by his duly authorized
 representative. No such pipette or syringe shall be so marked unless it
 has been found upon examination to be so constructed and graduated as to
 deliver accurately the amount of liquid required for the determination.
 The provisions of this article, however, shall not preclude the use of a
 pipette already marked "S. B." or "N. Y.", by the director of the New
 York state agricultural experiment station.
 Whenever the bacterial count of such milk and/or cream is used wholly
 or in part as a basis for payment or settlement for such milk and/or
 cream, or whenever the bacterial count affects the classification of the
 milk and/or cream as received from the producer, or the acceptance or
 rejection of such milk and/or cream by the operator of a milk-receiving
 or manufacturing plant, no person or persons shall report or record a
 larger or smaller bacterial count than that obtained by the actual
 examination of the milk and/or cream so delivered by the producer. The
 commissioner or persons employed by him for that purpose may at any time
 inspect the equipment and assist in making bacterial counts of milk
 and/or cream received at any milk-receiving or manufacturing plant or
 other place where counts are made for the purpose of determining the
 accuracy of the counts so made.
 Any person or persons using other than the properly marked pipettes or
 syringes or crediting any patron delivering milk and/or cream with a
 larger or smaller bacterial count than that obtained by the actual count
 of the bacteria in the milk and/or cream so delivered and as determined
 by the method or methods approved by the commissioner shall be deemed to
 have violated the provisions of the agriculture and markets law.
 
  57. Licensing of persons in charge of milk-gathering stations,
 manufactories or plants; licensing of persons sampling milk and/or cream
 and/or determining weight or volume of milk and/or cream; and of persons
 making milk component tests. 1. No person shall take charge, either as
 superintendent, manager or otherwise, of any milk-gathering station,
 manufactory or plant where milk and/or cream is received from producers
 for sale or resale or for manufacture, unless licensed by the
 commissioner.
 2. No person shall measure, weigh, or otherwise determine the volume
 or weight of milk and/or cream received from or offered for sale by the
 producer thereof or sample such milk and/or cream, or handle, or prepare
 such milk and/or cream samples when such samples are to be used for the
 purpose of determining the amount of a milk component or components
 contained therein, and/or to determine the bacterial count thereof, or
 for any other purpose where the result of such test or examination is
 used as a basis for payment for such milk and/or cream, for the
 classification of such milk and/or cream, for the rejection or
 acceptance of such milk and/or cream, or for official inspection, or for
 public record, unless licensed by the commissioner provided, however,
 that the provisions of this section shall not be deemed to apply to any
 person employed by the state department of health or any municipal
 department of health in New York state when performing his official
 duties for such health agency. Such license shall be designated as a
 "milk receiver's license."
 3. No person shall prepare or test milk and/or cream samples by any
 method, for the purpose of determining the amount of any milk component
 contained therein, where the result of such test is used as a basis for
 payment for such milk and/or cream, or for official inspection or for
 public record, unless licensed by the commissioner.
 4. Application for a license, or licenses shall be made upon a form
 prescribed by the commissioner. The applicant shall furnish satisfactory
 evidence of good moral character, and shall give proof of his ability to
 perform the functions for which a license is applied, to the
 satisfaction of the commissioner. The applicant shall pay a license fee
 of five dollars to the commissioner for remittance to the state
 treasury. The commissioner, in his discretion, may combine in one
 license authority to perform any of the functions for which a license is
 required pursuant to the provisions of subdivisions one, two and three
 of this section. A license shall be for a period not exceeding five
 years, and may be renewed, in the discretion of the commissioner, for
 successive periods of not exceeding five years each upon payment of a
 license fee of two dollars to the commissioner for remittance to the
 state treasury.
 Each license shall be kept at the place where the licensee is employed
 and shall be open to inspection.
 A license may be revoked by the commissioner, after a hearing upon due
 notice to the licensee, for false statement in the application,
 dishonesty, incompetency, inaccuracy or a violation of the provisions of
 this article, and a license to take charge of a milk-gathering station,
 manufactory or plant may also be revoked for dishonesty, incompetency,
 inaccuracy, or a violation of the provisions of this article by any
 person working under the direction of the licensee and subject to his
 orders.
 
 
  57-a. Licensing of persons making bacterial counts of milk and/or
 cream or making tests of milk and/or cream to detect certain
 abnormalities. No person shall test milk and/or cream in order to
 determine the bacterial or leucocyte count or make other tests to
 determine the presence or absence of abnormal milk, where the results of
 such test affects the rate of payment to the producer for such milk
 and/or cream, the classification of milk and/or cream as received from
 the producer, or the acceptance or rejection of such milk and/or cream
 by the operator of a milk-receiving or manufacturing plant, unless
 licensed by the commissioner. Application for such license shall be made
 upon a form prescribed by the commissioner. The applicant shall furnish
 satisfactory evidence of good moral character, and shall demonstrate his
 ability to make such tests by an examination under the direction of the
 commissioner. The applicant shall pay a license fee of five dollars to
 the commissioner for remittance to the state treasury. A license shall
 be for a period not exceeding five years. A license may be renewed in
 the discretion of the commissioner, without an examination, for
 successive periods of not exceeding five years each upon payment of a
 license fee of two dollars to the commissioner for remittance to the
 state treasury.
 Each license shall be kept at the place where the licensee is engaged
 in testing milk and/or cream and shall be open to inspection.
 A license may be revoked by the commissioner, after a hearing upon due
 notice to the licensee, for dishonesty, incompetency, inaccuracy or a
 violation of the provisions of this article.
 
  59. Powers of the department concerning oleomargarine. The
 department through the commissioner shall have power and it shall be its
 duty to:
 1. Investigate, inspect and supervise the sale and exposure for sale
 of oleomargarine for home consumption.
 2. Investigate, inspect and supervise the sale and serving in public
 eating places of oleomargarine.
 3. Make and enforce reasonable rules and regulations implementing the
 provisions of this chapter relating to the manufacture, production and
 sale of oleomargarine.
 Nothing contained in this section shall be deemed or construed to
 limit in any way the effect of any other provision of this chapter
 conferring a power or imposing a duty upon the department or the
 commissioner.
 
  61. Manufacture, sale, and use of oleomargarine. 1. Definitions.
 For the purposes of this section, the following terms shall have the
 following meanings:
 (a) "Person" means any person, firm, corporation, copartnership,
 association, co-operative corporation, or unincorporated co-operative
 association.
 (b) "Oleomargarine" or "margarine" means any oleaginous substance,
 sold or exposed for sale, as a substitute for, or to take the place of,
 or used for the same purpose or purposes as butter, or having the
 appearance, odor, or taste which is similar to butter, and which is not
 made exclusively of milk or cream, or any substance into which any oil
 or fat other than that obtained from milk or cream has been introduced
 to take the place of butterfat. The terms include oleomargarine of any
 shade or color.
 (c) "Public eating place" means any hotel, boarding house, restaurant,
 saloon, lunch counter, place of public entertainment or any other place
 where prepared or cooked food is offered for sale to the public for
 consumption on the premises. When a hotel or other establishment
 operates more than one public eating place, each such place shall be
 deemed to be a separate public eating place. It shall be deemed to
 include camps, dude ranches, and other similar establishments operated
 for profit even though restricted to a certain age, or other distinctive
 group, but shall not be deemed to include religious, charitable or
 private camps.
 2. Fat standard. Oleomargarine manufactured, sold, offered or exposed
 for sale shall contain not less than eighty per centum of fat.
 3. Notice to consumers. Consumers shall be given notice of the use of
 oleomargarine in public eating places under the following conditions and
 in the following manners.
 (a) If oleomargarine is served directly to the customer or is placed
 on the table or counter where the customer is served notice of such
 serving shall be given.
 (b) If oleomargarine is served in such a manner that the customer
 cannot identify it, notice of such serving shall be given, provided,
 however, that use of oleomargarine in preparation of cooked or other
 foods, in which the identity of the oleomargarine is lost, shall not
 require notice.
 (c) Form of notice. Notice shall be given in such a manner that it is
 likely to be seen and understood by each person being served. If the
 public eating place is such that a single sign can be readily seen by
 each person being served, such sign shall be sufficient; otherwise
 notice shall be given by signs so located that one can be seen by each
 customer, or by notice on menus given to each customer.
 (d) Wording of notice. If oleomargarine is served on the tables or
 counters where customers are served, the notice shall read as,
 "Oleomargarine served here" or "margarine served here", provided,
 however, that if the oleomargarine is not served or used in any other
 manner notice may be given by a label on or accompanying the
 oleomargarine and identifying it as such. If oleomargarine is served in
 other ways, the notice shall be the same as hereinabove provided, or may
 specify the food or foods with which the oleomargarine is served.
 4. Rules and regulations. The commissioner is authorized, after due
 notice and hearing, to issue such rules and regulations as are necessary
 to carry out the provisions of this section.
 
  62. Coloring matter, dairy terms, size of package, labeling, false
 advertising. No person, manufacturing with intent to sell, any substance
 or article to be used as a substitute for cheese and which is not made
 exclusively from unadulterated milk or cream or both, with or without
 salt or rennet or both but into which any animal, intestinal or offal
 fats, or any oils or fats or oleaginous substance of any kind not
 produced from pure, unadulterated milk or cream, or into which melted
 butter, or butter in any condition or state or any modification of the
 same, or lard or tallow shall be introduced, shall add thereto or
 combine therewith any annatto or compounds of the same, or any other
 substance or substances whatever, for the purpose or with the effect of
 imparting thereto a color resembling yellow, or any shade of yellow
 cheese, nor introduce any such coloring matter or other substance into
 any of the articles of which the same is composed. No person
 manufacturing, selling or offering for sale any oleaginous substance not
 made from pure milk or cream from the same, designed to take the place
 of butter, shall make or sell the same under any brand, device or label
 bearing words indicative of cows or the product of the dairy or the
 names of breeds of cows or cattle, nor use terms indicative of processes
 in the dairy in making or preparing butter; no oleaginous substance not
 made from pure milk or cream from the same, designed to take the place
 of butter, shall hereafter be sold, offered or exposed for sale in this
 state unless
 (1) such substance is packaged,
 (2) the net weight of the contents of any package thereof sold in a
 retail establishment is one pound or less,
 (3) there appears on the label of the package (a) the word
 "oleomargarine" or "margarine" in type or lettering at least as large as
 any lettering on such label, (b) a statement of the net weight of the
 contents of the package, and (c) a full and accurate statement of the
 ingredients contained in such substance, and
 (4) each part of the contents of the package is contained in a wrapper
 which bears the words "oleomargarine" or "margarine" in type or
 lettering not smaller than twenty point type.
 No person, firm, association or corporation shall, in connection or
 association with the sale or exposure for sale, advertisement, or on the
 package, of any substance designed to be used as a substitute for
 butter, represent or suggest by any means whatever that such substance
 is a dairy product, except that nothing herein contained shall prevent
 an accurate statement of any of the ingredients contained in such
 substance.
 
  63. Labeling of imitation cheese; imitation cheese food and products
 containing imitation cheese. 1. Whenever the brand name or product
 designation of imitation cheese or imitation cheese food appears on a
 package, the brand name or product designation, whichever is larger,
 shall be immediately preceded, without intervening printed or graphic
 material by the word imitation and the name of the food imitated, in
 letters of the same color and on the same contrasting background and of
 equal size as the brand name or product designation, whichever is
 larger.
 2. On the label of any product containing imitation cheese or
 imitation cheese food, the product designation shall be immediately
 preceded or followed by the words "contains imitation cheese" or
 "contains imitation cheese food" whichever is appropriate, in letters of
 the same color and on the same contrasting background and of equal size
 as the product designation.
 3. Whenever imitation cheese or imitation cheese food is used in a
 product which is offered for sale for carry out or on premises
 consumption, a sign shall be prominently posted at the place of sale
 which states the product designation of the food followed immediately by
 the words "contains imitation cheese" or "contains imitation cheese
 food," whichever is appropriate. The letters on such sign shall be in
 block letters at least three inches in height and on a contrasting
 background which can be easily read by consumers under normal conditions
 of purchase.
 4. Whenever any product which contains imitation cheese or imitation
 cheese food product is offered for sale on the menu of any service food
 establishment, the product designation on such menu shall be immediately
 followed by the words "contains imitation cheese" or "contains imitation
 cheese food", whichever is appropriate, in letters of equal size and on
 a contrasting background.
 5. Whenever any imitation cheese or imitation cheese food product is
 placed on the tables or otherwise made available for use by customers in
 any service food establishment, the container of such product shall be
 conspicuously labeled "imitation cheese", or "imitation cheese food
 product".
 6. The commissioner shall promulgate such rules and regulations as are
 necessary and appropriate to carry out the provisions of this section,
 including specific identification of imitation cheese and imitation
 cheese food.
 
  67. Manufacturers identification markings and grade brands for
 cheese. 1. Every manufacturer of cheddar type cheese made in New York
 state shall put a stencil, brand, stamp or label upon such cheese
 indicating the variety of cheese as prescribed pursuant to rules and
 regulations promulgated by the commissioner pursuant to section
 forty-six-a; and no person shall use such markings upon any cheese which
 has not been manufactured under sanitary conditions as set forth in
 article four of this chapter and in accordance with the rules and
 regulations of the commissioner. The commissioner shall procure and
 issue on proper application therefor, and under such regulations as to
 the custody and use thereof as he may prescribe, a uniform stencil,
 brand, stamp or label bearing the words "cheddar cheese," "washed curd
 cheese" or "colby cheese," and a different number assigned by the
 commissioner for each separate factory to any manufacturer of cheese in
 New York state licensed by the commissioner. Every such stencil, brand,
 stamp or label shall be used upon the outside of the cheese and shall
 not be used upon any other than cheddar, washed curd or colby cheese or
 packages containing the same. It shall be unlawful for any person to use
 a cheese identification stencil, brand, stamp or label supplied by the
 commissioner as herein provided, to mark such cheese which does not
 conform to standards established by the commissioner pursuant to section
 forty-six-a. Every whole and uncut cheddar type cheese bearing the
 numbered identification stencil, brand, stamp or label markings herein
 provided shall be deemed to be in compliance with the provisions of
 subdivision five, section two hundred one of the agriculture and markets
 law.
 2. Every manufacturer of New York state cheddar type cheese, or his
 registered agent as provided herein, may put a state brand stamp or
 stencil issued by the commissioner upon such cheese manufactured in New
 York state which meets the requirements of the highest grade for New
 York state cheese. Such requirements shall be established by the
 commissioner. Such state brand stamp or stencil issued by the
 commissioner shall have markings at least one-half inch high, reading on
 a first line "grade" and on a second line "New York state brand,"
 enclosed within a miniature map of New York state and with the letters
 "NYS" superimposed thereon. Every such state brand stamp or stencil
 shall bear a different number for each manufacturer.
 3. Every manufacturer of New York state cheddar type cheese, or his
 registered agent as provided herein, may put a New York standard stamp
 or stencil upon such cheese manufactured in New York state which meets
 the requirements of the second highest grade for cheese. Such
 requirements shall be established by the commissioner. Such New York
 standard stamp or stencil shall be issued by the commissioner and shall
 have markings at least one-half inch high, reading on a first line
 "grade" and on a second line "New York standard," and shall bear a
 different number for each manufacturer, but no map of New York state
 shall be a part of this stamp or stencil.
 4. No person shall by means of any stencil, brand, stamp, label or
 other device use identification or grade markings which are similar to
 those provided pursuant to subdivisions one, two, and three of this
 section, unless authorized by the commissioner to do so.
 5. The commissioner shall keep a record in which shall be registered
 the name and location of each manufacturer to whom such identification
 markings are issued as provided in subdivision one of this section, and
 the name and location of each manufacturer and his designated agent to
 whom grade markings are issued as provided in subdivisions two and three
 of this section. Whenever evidence is found or received by the
 commissioner tending to show that the grade-designating stamps or 
stencils, as provided in subdivisions two and three of this section, 
 have been used to mark cheese which does not meet the requirements of 
 grade for which it is marked, he may order the custodian of such grade 
 markings to immediately discontinue use thereof and return such stamps 
or stencils to the commissioner; and it is further provided that the 
 commissioner may order the removal or obliteration of such grade
 markings as provided herein from the cheese which does not meet the 
 grade represented and as established by the commissioner. The custodian to
 whom such a grade marking device or devices has been issued, and the use 
of which has been revoked, or who possesses or has possessed cheese from 
 which grade marks have been ordered obliterated, shall, upon 
 request, be granted a hearing before the commissioner or his designated 
 agent, and at such hearing, said custodian may present evidence to show 
 why use of such device or devices should be restored to him and 
 obliterated grade marks on cheese should be replaced. The commissioner 
 may promulgate rules and regulation pertaining to the use of the New 
 York state identifications and grade markings issued by him as provided 
 in this section.
 
  67-b. Pasteurization of cheese. No person manufacturing cheese or
 cheese curd or handling cheese or cheese curd as a wholesaler, assembler
 or broker in the state of New York and no person obtaining cheese from
 outside the state shall release any cheese or cheese curd to the retail
 trade or to consumers unless such cheese or cheese curd has been
 pasteurized or has been made from whole milk, skim milk or cream which
 has been pasteurized in accordance with rules and regulations
 promulgated by the commissioner after inquiry and public hearing; except
 that cheese cured for sixty days or longer after manufacture may be made
 from unpasteurized milk.
 
  68. Use of false brand prohibited. No person shall offer, sell or
 expose for sale, in any package, butter or cheese which is falsely
 branded or labeled.
 
  69. County trade marks. At a regular or special meeting of a county
 dairymen's association in any county of the state there may be adopted a
 county trade mark, by a majority of the members present and voting, to
 be used as a trade mark by a person manufacturing pure unadulterated
 butter or full-cream cheese in such county. The secretary of the
 association shall forthwith send to the commissioner a copy of such
 trade mark, which copy he shall place on file in his office, noting
 thereupon the day and hour he received the same. But one county trade
 mark for butter and for cheese shall be placed on file for the same
 county. No association shall adopt any trade mark of any county already
 on file, or use that of any other county in the formation of a trade
 mark.
 
  70. Branded cans, jars, bottles, cases, boxes or barrels not to be
 sold, remarked or used without consent of owner. No person shall
 hereafter without the consent of the owner use, sell, dispose of, buy or
 traffic in any milk can, jar or bottle, or any cream can, jar or bottle,
 or any milk bottle case, or any meat case, box or barrel having the name
 or initials of the owner stamped, marked or fastened on such can, jar,
 bottle, box, barrel or case, or wilfully mar, erase or change by
 remarking or otherwise said name or initials of any such owner, so
 stamped, marked or fastened upon said can, jar, bottle, box, barrel or
 case. Nor shall any person without the consent of the owner place in any
 such can, jar or bottle, any substance or product other than milk or
 cream.
 
  71. Registration of mark; defacing mark; seizure. Any person owning
 milk cans, jars, bottles, bottle cases or carton cases upon which he has
 placed or desires to place any designating mark may register the said
 designating mark with the commissioner, who shall keep a record thereof,
 and he may also register with the commissioner, from time to time, the
 number of such cans, jars, bottles, bottle cases or carton cases, which
 he has or is to have, which do or may bear such designating mark. Such
 cans, jars, bottles, bottle cases or carton cases may, after such
 registration be numbered consecutively and such consecutive numbers may
 be registered in the department, as above provided, with the designating
 mark. If any such can, jar, bottle, bottle case or carton case, bearing
 such designating mark, shall be found in possession of, and being used
 by any person other than the one so registering the same it shall be
 presumptive evidence of a violation of the provisions of this article,
 unless such person has the consent of the owner thereof to so have and
 use the same.
 No person, except the original owner thereof, or a person duly
 authorized by him so to do, shall remove, deface or erase any of the
 marks upon the cans, jars, bottles, bottle cases or carton cases herein
 provided for.
 When the commissioner, or any person duly authorized by him, shall
 find any such cans, jars, bottles, bottle cases or carton cases, bearing
 such registered designating mark, in the possession of or being used by
 another person than the owner thereof, he may seize the same, and if
 evidence is produced in three days showing that such person had been
 given permission to have or use such cans, jars, bottles, bottle cases
 or carton cases, then they shall be delivered by the commissioner, or
 his agents, to the person from whom taken, otherwise the commissioner
 shall notify the owner of such cans, jars, bottles, bottle cases or
 carton cases, that he has the same and upon application deliver the same
 to such owner.