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NO. 154. AN ACT RELATING TO rbST LABELING.

(S.73)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 6 V.S.A. chapter 151, subchapter 5 is added to read:

Subchapter 5. rbST Labeling

§ 2760. SUBSTANTIAL STATE INTEREST

(a) Role of state government. The Vermont general assembly finds, as does the U.S. Food and Drug Administration, that the states under our federal system of government have traditionally undertaken the role of overseeing milk production. The Vermont general assembly also finds that the intent of the U.S. Food and Drug Administration is to rely primarily on state governments to validate rbST labeling claims regarding milk and dairy products and to ensure that such claims are truthful and not misleading.

(b) State policy. It is the policy of this state:

(1) that Vermont citizens should have an opportunity to choose to consume milk or dairy products which have not had rbST used in their production ("rbST-free"), based on truthful and nonmisleading product labeling;

(2) that Vermont dairy product manufacturers who want to sell rbST-free products in Vermont or out of state should be able to do so, based on a state-sanctioned process for certifying rbST-free labeling claims;

(3) that the economic health and vitality of the Vermont dairy industry is critical to the health of the overall Vermont economy, which depends in part on the high reputation of Vermont farmers and their dairy products, and the associated goodwill toward other Vermont enterprises, and that this economic asset should not be jeopardized by consumer doubts about the integrity of Vermont milk or dairy products caused by false, misleading or unverifiable rbST-free labeling claims; and

(4) to support the right of Vermont dairy farmers to choose to use rbST, and of rbST manufacturers and suppliers to sell their product to Vermont dairy farmers.

(c) Substantial state interest. Therefore, the Vermont general assembly:

(1) finds a substantial state interest in ensuring the availability of milk and dairy product labeling information that is accurate and nonmisleading, and in which Vermontand out-of-state consumers can place their confidence; and

(2) seeks to serve this interest through this subchapter by:

(A) authorizing a program of voluntary labeling of milk and dairy products which have not had rbST used in their production; and

(B) providing for the verification of claims that rbST has not been used in the production of milk or dairy products offered for sale in Vermont; but

(C) without unduly intruding into the businesses of Vermont dairy farmers who choose to use rbST, or of rbST manufacturers or suppliers who choose to sell their product to Vermont dairy farmers.

§ 2761. DEFINITIONS

For the purpose of this subchapter:

(1) "Commissioner" means the commissioner of agriculture, food and markets.

(2) "Milk and dairy products" means cow's milk as defined by section 2672 of this title, and butter, cheese, cream, buttermilk, powdered milk, infant formula, ice cream, yogurt, and other dairy products identified by rule by the commissioner.

(3) "Milk handler" or "handler" means the collector and transporter of milk and the processor or manufacturer of milk or dairy products for sale within or outside the state of Vermont, and as otherwise defined by section 2672 of this title.

(4) "Milk producer" or "producer" means the party who owns or controls one or more cows and offers for sale the milk produced by the cows, and as otherwise defined by section 2672 of this title.

(5) "rbST" means recombinant bovine somatotropin, a recombinant bovine growth hormone used with lactating dairy cows to increase the production of marketable milk, which is also known as rbGH.

(6) "rbST supplier" or "supplier" means any party, including a manufacturer, distributor or other intermediary, who sells or freely distributes rbST.

§ 2762. PRODUCER AFFIDAVIT; VOLUNTARY LABELING

A milk handler may claim in the label on a container or package of milk or of a dairy product offered for retail sale in Vermont, or in a written display at the point of sale ofsuch milk or dairy product, that the milk or dairy product is derived from cows not treated with rbST, provided that:

(1) Producer affidavit. Each milk producer supplying the handler with milk to be so identified shall, by affidavit, notify the handler that milk sold to the handler is from cows which are not, and have not been within 90 days prior to the notification, treated with rbST, and swears that he or she will notify his or her handler at least 90 days before using rbST in the production of milk by such cows.

(2) Handler affidavit.

(A) The milk handler shall, by affidavit, notify the commissioner of the handler's practices adopted to assure that milk from cows not treated with rbST is kept separate from other milk throughout the collection, transportation and processing steps until the finished milk or dairy product is in final packaged form in a labeled container, and swears that he or she will notify the commissioner at least 90 days before ceasing use of such practices.

(B) A milk handler supplying another milk handler with milk to be identified shall, by affidavit, notify the receiving handler that milk sold to the handler is from producers in compliance with subdivision (1) of this section.

(3) Context statement. The label or point-of-sale display shall contain a clear and conspicuous statement such as, "the U.S. Food and Drug Administration has not found a significant difference to exist between milk derived from rbST-treated and non-rbST-treated cows", or such other truthful and nonmisleading statement conveying reasons, other than safety and quality, for choosing to use milk or dairy products which have not had rbST used in their production.

(4) Advertisement; point-of-sale display. A handler whose affidavit claims:

(A) That all milk or dairy products marketed under a given brand name are derived from cows not treated with rbST, may state in an advertisement or in a point-of-sale display that the entire line of milk or dairy products with this brand name is derived from cows not treated with rbST.

(B) That some milk or dairy products marketed under a given brand-name arederived from cows not treated with rbST, but makes no such claim regarding other milk or dairy products with this brand name, shall in any advertisement of rbST free milk or dairy product, or in a point-of-sale display, identify the specific milk or dairy product or products with this brand name derived from cows not treated with rbST.

§ 2763. COMMISSIONER'S VERIFICATION

(a) The commissioner is authorized to conduct random inspections of dairy farm operations to determine whether evidence exists that rbST is or has been used in the production of milk, which may include inspection of a milking herd, historical milk production records, and medicine storage places. If an inspection finds evidence contradicting the claim of a producer made under 2762 of this title, the commissioner shall immediately so notify the attorney general and the handler concerned.

(b) The commissioner is authorized to investigate when he or she deems appropriate, and the commissioner shall at least annually review, the business operations of any milk handler who claims pursuant to this subchapter that rbST has not been used in the production of milk or dairy products offered for retail sale in Vermont, for the purpose of verifying such claims. An investigation or an annual review may be made, if the commissioner deems appropriate, of claims of non-rbST use in the production in other states or countries of milk or dairy products offered for retail sale in Vermont, pursuant to section 2767 of this title. An investigation or a review may include the examination of a milk handler's collection, transportation, processing or manufacturing equipment, methods and historical records, including records of milk pickups and deliveries.

(c) The commissioner is authorized to confirm a producer's claim of non-rbST use pursuant to section 2762(1) of this title:

(1) in conjunction with the random inspection of dairy farm operations pursuant to subsection (a) of this section;

(2) upon the written request of a handler regarding specific producers supplying milk to the handler; or

(3) when the commissioner has reason to suspect that a specific producer has made a false affidavit.

(d) Any supplier of rbST doing business or wishing to do business in Vermont shall register with the commissioner. In the event the commissioner is investigating a producer's claim of non-rbST use pursuant to section 2762(1) of this title, a supplier shall when requested by the commissioner make available to the commissioner records of business transactions with the producer under investigation by the commissioner.

(e) The commissioner shall annually prepare a list of each milk handler, and of each milk or dairy product of the handler concerned, whose claim of non-rbST use pursuant to section 2762 of this title has been validated. The list shall be available to the public upon request.

(f) If the commissioner determines that the claims of a milk handler of non-rbST use pursuant to section 2762 of this title cannot be verified, the commissioner shall immediately so notify the attorney general and the handler concerned.

(g) The commissioner shall annually by January 15 report to the general assembly on implementing this section, consistent with the confidentiality requirements of section 2766 of this title.

§ 2764. ENFORCEMENT; PENALTY

(a) A violation under this subchapter may give rise to a civil, administrative or criminal enforcement action under Title 9, Title 6 or Title 13.

(b) The commissioner may seek search warrants and accept assurances of discontinuance under sections 1, 12 and 13 of Title 6, or may suspend or revoke the license issued to a milk handler under this title who violates this subchapter.

(c) The attorney general or state's attorney may prosecute civil, criminal or administrative actions in accordance with the Civil and Criminal Rules of Procedure and the Administrative Procedure Act.

§ 2765. MILK PURCHASE REFUSAL

If the attorney general commences an enforcement action against a milk producer for a false affirmation, claim or affidavit pursuant to this subchapter, the charge shall be a matter of public record, and a handler purchasing milk from the producer may immediately refuse to purchase and accept milk from that producer, notwithstanding the provisions ofsection 2752 of this title.

§ 2766. CONFIDENTIALITY

Any identifying information contained in any reports, records or other record of information regardless of format in which it is created and maintained, obtained by the commissioner, the attorney general or a handler pursuant to this subchapter shall be kept confidential and shall not be disclosed to any person, except:

(1) as necessary to enable enforcement of this subchapter;

(2) as provided by section 2765 of this title; and

(3) to enable the commissioner to perform his or her duties under this subchapter, which may include preparation of public information and public reports on the provisions of this subchapter and its implementation, provided that such information and reports are presented in a form which does not disclose the identity of individual persons or individual milk producers whose activities or products are the subject of the information.

§ 2767. RECIPROCITY

A person may offer for retail sale in this state milk and dairy products from other states and countries, the label of which displays the claim that rbST has not been used in the production of the milk or dairy products, if the milk or dairy products are identified by the commissioner:

(1) as from a state or country which has a law comparable to this subchapter and the milk or dairy products are labeled in compliance with the law of that state or country; or employs other methods administered by the state or country acceptable to the commissioner for verifying claims that rbST has not been used in milk production and processing;

(2) as provided by a handler which employs a method acceptable to the commissioner for verifying claims that rbST has not been used in milk production and processing, or

(3) as from a state or country with a law or laws precluding the use of rbST in the production of milk.

§ 2768. RULES

The commissioner may adopt rules to implement this subchapter.

Sec. 2. rbST DETECTION

The commissioner of agriculture, foods and markets shall investigate current research and development of methods for detecting the presence of rbST in milk and milk products. Notwithstanding section 5 of Title 32, the commissioner is authorized to receive grants or donations for this purpose. The commissioner shall report results of the investigation to the general assembly by January 15, 1999.

Sec. 3. EFFECTIVE DATE

This act shall take effect on passage, except that the milk handler labeling requirements of section 2762 of Title 6 provided in Sec. 1 of this act shall take effect on July 1, 1998. However, nothing in this act shall prevent a milk handler before July 1, 1998 from labeling and advertising its milk or dairy products as derived from cows not treated with rbST.

Approved: April 29, 1998