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

New York State Consolidated Laws

Agriculture & Markets

 
 ARTICLE 4-A
 
Frozen Desserts
 
Section 71-a. Declaration of policy.
 71-b. Application for license.
 71-c. License fees.
 71-d. Issuance of License.
 71-e. Revocation or suspension of license.
 71-f. Review.
 71-g. Prohibitions.
 71-h. Vehicles used for transportation of frozen desserts.
 71-i. Illegal use of equipment.
 71-j. Samples of frozen desserts for analysis.
 71-k. Violations; remedies.
 
 
  71-a. Declaration of policy. 1. It is hereby declared that the dairy
 industry is a paramount industry of the state 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 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 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. Regulations pertaining to sanitary requirements,
 production, processing, all labeling requirements, and distribution of
 frozen desserts products which are uniform and uniformily enforced are
 essential for the protection of consumers and the economic well being of
 the dairy industry. It is further declared that advances in food
 technology have resulted in the development of products similar to
 frozen desserts, including such products having a lower butterfat
 content and products made with oils or fats other than butterfat and
 with solids not fat from sources other than dairy products and that such
 products are recognized as wholesome and nutritious articles of food;
 that such products are similar in appearance, odor or taste and are
 difficult to differentiate from frozen desserts made with 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 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, to eliminate needless duplication of inspection and
 conflicting and diverse requirements by various agencies, and by
 providing for rules and regulations which will effect their orderly
 marketing and insure uniform sanitary standards and enforcement.
 2. For the purpose of this article and for any rules and regulations
 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, ice milk, freezer made
 shakes, fruit sherbert, water ice, quiescently frozen confection,
 quiescently frozen dairy confection, manufactured desserts mix, frozen
 confection, mellorine frozen dessert 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 frozen desserts are customarily
 prepared or frozen, whether made with dairy products or non-dairy
 products.
 3. a. "Person" means and includes any individual, copartnership,
 corporation, cooperative association, cooperative corporation, or
 unincorporated association.
 b. "Plant" means any single location or mobile manufacturing unit
 which manufactures frozen desserts.
 4. Rules and regulations. (a) The commissioner shall, after public
 hearing, promulgate definitions and standards for frozen desserts
 including those made with dairy products, those not made with dairy
 products and those which are similar in appearance, odor or taste to
 such products or are prepared or frozen as frozen desserts are
 customarily prepared or frozen, together with rules and regulations for
 the packaging and all labeling requirements for all such products, and 
other conditions relating to the wholesale manufacture, processing, 
packaging, distribution and sale at wholesale of all such products; 
including, but not limited to, sanitization pertaining to manufacture, 
processing, handling, distribution, buildings, grounds, equipment, 
personnel and pasteurization or heat treatment of frozen desserts or 
ingredients. No municipality or county may impose any regulation or 
standard for frozen desserts different from those provided herein or by 
regulations promulgated hereunder. No municipality or county may require 
the inspection of frozen dessert plants beyond its borders and shall 
accept the certification of the commissioner that such plants conform to 
this act and the rules and regulations promulgated hereunder, unless 
there is substantial reason to believe that a manufacturer of frozen 
desserts, offered for sale in such county or municipality, is not in 
substantial compliance with the requirements of this article or the 
regulations promulgated pursuant thereto.
 (b) Following any hearing to consider definitions and standards or 
rules and regulations, pursuant to paragraph (a) of this subsection, the 
commissioner shall issue a recommended decision and shall afford 
interested parties an opportunity to file exceptions to such recommended 
decision based upon the facts in the hearing record. After full 
consideration has been given to such exceptions, a final decision shall 
be made.
 (c) No person shall manufacture, distribute or sell in this state a 
frozen dessert for which a definition and standard has not been 
promulgated pursuant to this article.
 (d) Any person who desires to manufacture, distribute or sell in this 
state, any frozen dessert for which a definition and standard has not 
been promulgated by the commissioner pursuant to this section, shall 
first make application to the commissioner for the promulgation of a 
definition and standard for such proposed frozen dessert. Such 
application shall include the essential details of such proposed 
definition and standard. Upon the receipt of such an application, the 
commissioner shall call a public hearing for the purpose of considering 
such proposed definition and standard. In determining whether or not 
such proposed definition and standard shall be promulgated, the 
commissioner shall consider, among other things, the following:
 1. Is the proposed product a frozen dessert as provided pursuant to 
the provisions of subdivision two of this section?
 2. Is the proposed frozen dessert substantially different from other 
frozen desserts for which definitions and standards have already been 
promulgated by the commissioner?
 3. Is it in the public interest to promulgate such proposed definition 
and standard?
 4. Will the promulgation of such proposed definition and standard be 
advantageous to consumers and not result in a lowering of health 
standards or promote fraud and deception? Following the hearing to 
consider any such proposed definition and standard, the commissioner 
shall issue a recommended decision as provided pursuant to 
paragraph (b) of subdivision four of this section, either adopting, 
modifying, or denying the proposed definition and standard, giving 
interested parties an opportunity to file exceptions, within thirty days, 
to such recommended decision based upon the facts in the hearing record, 
and after full consideration has been given to any such exceptions, a 
final decision shall be made.
 
 71-b. Application for license. 1. Every wholesale manufacturer of
 frozen desserts produced for sale, and every person who sells, offers or
 exposes for sale, or has or possesses for sale other than exclusively at
 retail, any frozen dessert, shall, not later than the first day of
 February of every other year, file with the commissioner an application
 for a license upon a form prescribed by the commissioner, which
 application shall state such facts concerning the applicant's
 circumstances and the nature of business to be conducted as in the
 opinion of the commissioner are necessary for the administration of this
 article. The license period shall be for twenty-four months, beginning
 March first following.
 2. The application of a manufacturer must show that the frozen
 desserts to be manufactured by the applicant are to be composed of pure
 and wholesome ingredients and are to be produced under sanitary
 conditions. The application shall also show the location of each plant
 at which frozen desserts are to be manufactured, and the name of the
 brand or brands, if any, under which the same are to be sold.
 3. This section shall not apply to any boarding house in respect to
 frozen desserts manufactured by such boarding house and served to the
 patrons thereof for consumption on the premises where manufactured, nor
 to a person, other than a manufacturer, who sells, offers or exposes for
 sale, or has on hand with intent to sell exclusively at retail, any
 frozen dessert.
 
  71-c. License fees. (1) Wholesale. The biennial license fee for
 each plant which engages in the manufacture of frozen desserts for sale
 at wholesale, shall be determined on the basis of the biennial volume of
 frozen desserts manufactured as shown in the application of the
 manufacturer in accordance with the following schedule:
 
Not to exceed 200,000 gallons $ 50.00
 Over 200,000 but not over 400,000 gallons 100.00
 Over 400,000 but not over 1,000,000 gallons 200.00
 Over 1,000,000 gallons 300.00
 
In the event that an audit of the records of any wholesale
 manufacturer of frozen desserts discloses a greater or lesser volume of
 frozen desserts manufactured than was shown in such manufacturer's
 application for license, the license fee paid by such manufacturer shall
 be adjusted accordingly.
 (2) Handlers. The biennial license fee for a person other than a
 manufacturer who in the regular course of business sells, offers or
 exposes for sale, or who has or possesses for sale, other than at
 retail, any frozen dessert shall be twenty dollars.
 (3) All fees as provided herein shall be tendered to the commissioner
 with the application and upon issuance of the license shall be remitted
 by the commissioner to the state treasury.
 
  71-d. Issuance of License. No license shall be granted unless the
 commissioner is satisfied that the applicant is qualified by character
 and experience, and is equipped to conduct the proposed business
 properly. Prior to the issuance of a license to manufacture frozen
 desserts, to satisfy himself that the applicant is equipped to conduct
 the proposed business properly, as hereinabove required, and at any
 other time when, in his discretion, he shall deem such action necessary,
 the commissioner may inspect the plant and equipment of the applicant.
 The commissioner may enter into and effectuate reciprocal agreements
 with other states, covering regulation and inspection of frozen dessert
 plants, as will insure inhabitants of this state frozen desserts
 substantially complying with the requirements herein enacted or
 promulgated in rules and regulations hereunder and as part of such
 agreements may approve or accept inspections and regulation of other
 states covering frozen desserts plants. The commissioner may inspect a
 plant beyond the boundary of the state, and when he does, the applicant
 shall, prior to such inspection, pay, in addition to the license fee set
 forth in section seventy-one-c of this article, fees for inspection of
 the plant by the department. Such fees shall be twenty-five dollars for
 each day consisting of seven hours or part thereof during which an
 employee of the department spends traveling to and from and inspecting
 the plant. In addition, the applicant shall pay all necessary expenses
 including but not limited to expenses for traveling, lodging and meals.
 The commissioner, if satisfied with the qualifications of the applicant
 as hereinabove stated and if satisfied that the equipment, the vehicles
 used for transporting frozen desserts and the premises named in the
 application and used by the applicant for the manufacture, storage or
 sale of frozen desserts are maintained in accordance with the standards
 of sanitation prescribed in the rules and regulations promulgated under
 the authority of this article, shall issue a license for the handling of
 frozen desserts. No license shall be issued if any statement in the
 application is false or misleading, or if the brand name or any label or
 advertisement of the frozen dessert involved in the application gives a
 false indication of origin, character, composition or place of
 manufacture, or is otherwise false or misleading in any particular.
 
  71-e. Revocation or suspension of license. Any license may be
 revoked by the commissioner, after notice to the licensee by mail or
 otherwise and opportunity to be heard, when and if it appears that any
 statement upon which it was issued was false or misleading, or that any
 frozen dessert manufactured, sold, offered or exposed for sale, or held
 for sale, by the licensee is adulterated or misbranded, or is
 manufactured in a plant, or transported in a vehicle, or stored in
 equipment not maintained in accordance with the standards of sanitation
 prescribed in the rules and regulations promulgated under the authority
 of this article, or that the brand name of any label or advertising of
 any frozen dessert manufactured, sold, offered or exposed for sale, or
 held for sale, by the licensee gives a false indication of origin,
 character, composition or place of manufacture, or is otherwise false or
 misleading in any particular.
 A license may also, after such notice and hearing, be suspended for
 any of the foregoing reasons until the licensee complies with the
 conditions prescribed by the commissioner for its reinstatement.
 Where the commissioner has denied, revoked or suspended a license, an
 order to that effect may be issued and service thereof may be made
 either by personal delivery of a copy, or by mailing a copy in a sealed
 envelope with postage prepaid to such applicant or licensee, or, in case
 such applicant or licensee is a corporation, then to any officer or
 agent of such corporation upon whom a summons may be served in
 accordance with the provisions of the civil practice law and rules.
 
  71-f. Review. The action of the commissioner in refusing to grant a
 license, or in revoking or suspending a license, shall be subject to
 review by a proceeding under article seventy-eight of the civil practice
 law and rules, but the decision of the commissioner shall be final
 unless within thirty days from the date of the order embodying such
 action such proceeding to review has been instituted.
 
  71-g. Prohibitions. It shall be unlawful for any person to buy or
 sell any frozen desserts unless all the parties to such purchase or sale
 who are required to be licensed under the provisions of this article be
 duly licensed in accordance therewith.
 The foregoing prohibition shall not apply
 (1) To any frozen desserts manufactured and sold by a church or a
 religious organization solely for the benefit of such church or
 religious organization.
 (2) To any frozen dessert manufactured outside of the state of New
 York and shipped into and/or through this state to be sold without this
 state while such frozen dessert constitutes the original unbroken
 package delivered by the shipper to the carrier at the initial point of
 interstate shipment.
 No person shall sell, offer for sale or advertise for sale any frozen
 dessert, if the brand name of the frozen dessert or the label upon it or
 the advertising accompanying it shall give a false indication of origin,
 character, composition, or place of manufacture, or is otherwise false
 or misleading in any particular.
 
  71-h. Vehicles used for transportation of frozen desserts. All
 vehicles used for the transportation and distribution of frozen desserts
 shall be constructed of impervious material capable of being cleaned,
 shall be kept clean and sanitary, shall be so operated as to protect
 their contents from contamination, and shall have prominently displayed
 thereon the name and address of the licensee who sells, offers or
 exposes for sale, or holds with intent to sell, such frozen desserts.
 
  71-i. Illegal use of equipment. (1) No person shall sell or offer
 or expose for sale frozen desserts in any container which is falsely
 labeled as to the name of the manufacturer or place of manufacture, or
 in any other respect.
 (2) No person shall misrepresent in any manner the name of the
 manufacturer or the place of manufacture of frozen desserts.
 (3) No person shall use or cause or permit to be used, for the purpose
 of preserving or holding frozen desserts, any cabinet, can, container or
 other equipment owned by any other person without the written consent of
 such owner.
 (4) No person shall place any frozen desserts or any other products of
 one manufacturer in the cabinet, cabinet compartment, can, container or
 other equipment belonging to another manufacturer without the written
 consent of the owner of such cabinet, cabinet compartment, can,
 container or other equipment.
 (5) No person, other than the owner, shall remove, erase, obliterate,
 cover or conceal the owner's name or any distinguishing mark or device
 which may appear or be placed on any cabinet, can, container or other
 equipment.
 
  71-j. Samples of frozen desserts for analysis. A representative
 sample of frozen deserts for analysis shall consist of a quantity to be
 determined by the commissioner.
 
  71-k. Violations; remedies. The commissioner may institute such
 action at law or in equity as may appear necessary to enforce compliance
 with any provisions of this article or of the rules and regulations
 promulgated thereunder, 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 may be made to the supreme court in any district
 or county as provided in the civil practice law and rules, or to the
 supreme court in the third judicial district.