§ 2671. Purpose
It is the policy of the state of Vermont to protect and promote the public interest by:
(1) Insuring the citizens of this state, and the general public an adequate supply of pure fresh milk and other dairy products of constantly improving quality.
(2) Establishing such appropriate dairy laws, regulations and administrative procedures, as will protect the public health and welfare.
(3) Improving the economy of the state and the welfare of dairy farmers and milk handlers by improving the competitive position of the dairy industry, and increasing the consumption of milk and other dairy products.
(4) Securing uniformity in dairy standards, labeling and sanitary procedures, and developing milk markets by cooperating and coordinating with the appropriate dairy agencies of other states and the federal government to the extent consistent with the interest of the state of Vermont.
(5) It is essential, in order to assure the continued production of milk and its handling and distribution, that prices to producers be such as to return reasonable cost of production, and at the same time assure an adequate supply of milk and dairy products to consumers at reasonable prices; and to these ends it is essential that consumers and others be adequately informed as to the dietary needs and advantages of milk and dairy products and as to the economics resulting from the use of milk and dairy products, and to command for milk and dairy products, consumer attention and demand consistent with their importance and value. It is further declared that continued decline in the consumption of fluid milk and some other dairy products will jeopardize the production of adequate supplies of milk and dairy products because of increasing surpluses necessarily returning less to producers; and that continued adequate supplies of milk and dairy products is a matter of vital concern as affecting the health and general welfare of the people of this state. It is therefore declared to be the legislative intent and policy of the state:
(A) To enable milk producers and others in the dairy industry, with the aid of the state, to more effectively promote the consumption of milk and dairy products;
(B) To provide methods and means for the development of new and improved dairy products, and to promote their use; and
(C) To this end, eliminate the possible impairment of the purchasing power of the milk producers of this state and to assure an adequate supply of milk for consumers at reasonable prices. (1965, No. 175, § 1; amended 1979, No. 101 (Adj. Sess.), § 8; 1981, No. 198 (Adj. Sess.), § 8, eff. April 22, 1982.)
§ 2672. Definitions
As used in this part, the following terms have the following meanings:
(1) "Secretary" means secretary of agriculture, food and markets or his duly authorized agent.
(2) "Milk producer" or "producer" is a person, partnership, unincorporated association or corporation who owns or controls one or more cows, dairy goats, dairy sheep, or water buffalo and sells or offers for sale a part or all of the milk produced by the animals.
(3) "Dairy farm" is any place or premise where one or more cows, dairy goats, dairy sheep, or water buffalo are kept and where a part, or all of the milk from the animals is sold or offered for sale.
(4) "Milk plant" is any place, premise, or establishment where milk or dairy products are collected, assembled, handled, processed, stored, pasteurized, packaged or prepared for distribution.
(5) "Milk handler" or "handler" is a person, firm, unincorporated association or corporation engaged in the business of buying, selling, assembling, packaging, or processing milk or other dairy products, for sale within or without the state of Vermont.
(6) "Milk handler license" is a license issued by the secretary which authorizes the licensee to carry on the business of a milk handler.
(7) "Milk":
(A) "Cows' milk" is the colostrum-free, pure, lacteal product of healthy cows which contains not less than 11.50 percentum of total milk solids (to which nothing has been added or taken away). Cows' milk sold in retail packages shall contain not less than 3.25 percent milk fat, and not less than 8.25 percent nonfat milk solids. The secretary may, in accordance with chapter 25 of Title 3, promulgate a list of food grade additives which may be added to cows' milk. The additives used in cows' milk sold in retail packages shall be conspicuously stated in descending order of importance on the label of the package in a manner approved by the secretary. Such milk may be standardized by the addition of pure, fresh skim milk or cream as defined by regulation.
(B) "Goats' milk" is the colostrum-free, pure, lacteal product of healthy dairy goats which contains not less than 10 percentum of total milk solids (to which nothing has been added or taken away). Goats' milk sold in retail packages shall contain not less than 2.5 percent milk fat and not less than 7.5 percent nonfat milk solids. The secretary may, in accordance with chapter 25 of Title 3, promulgate a list of food grade additives which may be added to goats' milk. The additives used in goats' milk sold in retail packages shall be conspicuously stated in descending order of importance on the label of the package in a manner approved by the secretary. Such milk may be standardized by the addition of pure, fresh skim milk or cream as defined by regulation.
(C) "Sheep's milk" is the colostrum-free, pure, lacteal product of healthy dairy sheep which contains no less than 11.50 percent of total milk solids (to which nothing has been added or taken away).
(D) "Water buffalo's milk" is the colostrum-free, pure, lacteal product of healthy dairy water buffalo which contains no less than 11.50 percent of total milk solids (to which nothing has been added or taken away).
(8) "Imitation dairy products" are those products containing no milk which by their texture, flavor, color, packaging, or other characteristics, could be confused by consumers with established and defined dairy products or are sold or offered for sale as substitutes for milk or fluid dairy products.
(9) "An imitation dairy product handler" is a person, firm, unincorporated association or corporation engaged in the business of buying, selling, packaging or processing imitation dairy products for sale within or without the state of Vermont.
(10) "An imitation dairy product handler's license" is a license issued by the secretary which authorizes the licensee to carry on the business of an imitation dairy products handler.
(11) "Retail package of dairy product or imitation dairy product" is a package to be sold to a consumer.
(12) "Dairy products" are milk, or the products derived therefrom, which conform to the appropriate legal standard or definition for the specific product as defined in this part and regulations made under this part.
(13) "Fluid dairy products" are milk and fluid dairy products derived from milk, including cultured products, as defined by regulations made under this part.
(14) "Licensed technician" is a person who has demonstrated by appropriate tests, to the satisfaction of the secretary, that he has the skill, experience, ability and integrity to perform tests that are used as a basis for payment or acceptance of dairy products or imitation dairy products, and who holds one or more licenses issued by the secretary authorizing him to carry on one or more of these activities.
(15) "Approved dairy laboratory" is any place or premise which has been inspected and approved by the secretary, where tests are made on milk, dairy products, or imitation dairy products, to determine the quality or acceptance of the products. The laboratory shall meet recommendations as set forth in the latest edition of APHA "standard methods for the examination of dairy products." The secretary may terminate approval for cause.
(16) "Adulteration" means an adulterated dairy product or adulterated imitation dairy product containing noxious, unwholesome or deleterious material, preservative, drugs or chemical in a quantity injurious to health; or which does not conform to the definition of the product; or which is not produced, processed, or distributed according to the provisions of this part.
(17) "Commission" means the Vermont milk commission as constituted in section 2922 of this title.
(18) "Charitable uses" means the distribution of milk among poor and needy persons without charge or compensation therefor.
(19) "Distributor" means any person who sells milk or imitation dairy products to consumers within the state, except those who sell milk or imitation dairy products for consumption on the premises. A producer or person who delivers or sells milk to a distributor only shall not be deemed a distributor.
(20) "Market" means any area designated by the board as a natural marketing area.
(21) "School lunch milk" means milk sold, offered for sale or distribution at school buildings, grounds or other places used for school purposes.
(22) "Person" means individuals, corporations, partnerships, trusts, associations, cooperatives, and any and all other business units or entities.
(23) "Additional definitions": The secretary may, (after due notice and public hearing) in accordance with chapter 25 of Title 3, promulgate, amend, or rescind definitions of other dairy products and imitation dairy products including modified milk, dairy processes, and rules relating to specially trained personnel.
(24) "Drug" or "drugs" mean:
(A) articles recognized in the official United States Pharmacopeia, official Homeopathic Pharmacopeia of the United States, or official National Formulary, or supplement thereto; and
(B) articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and
(C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and
(D) articles intended for use as a component of any articles specified in subdivision (24)(A), (B), or (C), of this section, but not including devices or their components, parts, or accessories.
(25) Definitions and standards of milk products not herein defined shall be those established by federal agencies and published in the Code of Federal Regulations.
(26) "Vermont fresh milk" means milk consisting entirely of fresh milk produced in Vermont.
(27) "Northeastern fresh milk" means milk consisting entirely of fresh milk produced in Delaware, Maryland, New Jersey, Pennsylvania, New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, or Maine. (1965, No. 175, § 2; amended 1969, No. 73, § 1, eff. April 18, 1969; 1971, No. 177 (Adj. Sess.), § 1, eff. Jan. 1, 1973; 1979, No. 106 (Adj. Sess.), §§ 1, 2; 1989, No. 14; 1991, No. 17, § 8(a) eff. April 4, 1991; 1991, No. 232 (Adj. Sess.), § 1; 1999, No. 100 (Adj. Sess.), § 2, eff. May 5, 2000; 2001, No. 39, § 2; 2003, No. 37, § 5; No. 42, § 2, eff. May 27, 2003; 2003, No. 70 (Adj. Sess.), § 65, eff. March 1, 2004; 2007, No. 101 (Adj. Sess.), § 2, eff. April 22, 2008.)
§ 2673. Appointment of secretary of state for service of process
TITLE 6
Agriculture
PART VI
Milk and Milk Products
CHAPTER 151. SUPERVISION, INSPECTION AND LICENSING OF DAIRY OPERATIONS
Subchapter I. General Provisions
§ 2673. Appointment of secretary of state for service of process
Before a license is issued under the provisions of this subchapter, the handler, if a nonresident or a foreign corporation, shall, in writing, appoint the secretary of state its attorney upon whom service of legal process in any action or proceeding against it may be made with the same validity as if made upon the handler. The provisions of sections 4209 and 4210 of Title 9 shall apply to such handler. (1965, No. 175, § 20.)
§ 2674. Records and reports-Handlers
(a) On or before March 1 of each year all handlers shall send the secretary a full and accurate report of the amount of business done during the preceding year, together with such other statistical information as he or she may require.
(b) A milk handler that is licensed under this chapter and that withdraws more than 57,600 gallons of groundwater per day averaged over any 30-consecutive-day period shall annually report estimated water use to the secretary of agriculture, food and markets. The secretary of agriculture, food and markets shall share information reported under this section with the agency of natural resources. (Added 1965, No. 175, § 21; amended 2003, No. 42, § 2, eff. May 27, 2003; 2007, No. 199 (Adj. Sess.), § 7, eff. June 9, 2008.)
§ 2675. -Distributors
All distributors in any market specified by the commission as one in which it is in the public interest to regulate the supply, production and quality of milk, shall keep such records and make such reports as the commission may reasonably require. All other distributors shall keep such records and make such reports as the commission may reasonably require to keep it informed at all times as to the adequacy of such supply, production and quality of milk. Any member of the commission or its representative shall have access to and may enter and examine, at all reasonable hours, all places where milk is produced, handled, distributed or sold, and examine all books and records kept. (1965, No. 175, § 49; amended 1991, No. 17, § 8(a), eff. April 4, 1991.)
§ 2676. Title to milk in tank truck
When milk is sampled, measured and transferred from a farm tank to a tank truck, the milk collector shall be deemed to be the agent of the buyer and title to the milk shall be deemed to pass to the buyer at the time of such transfer. (1965, No. 175, § 35.)
§ 2677. Fluid dairy products for livestock feed
A milk plant or handler shall not dispense or deliver fluid dairy products for livestock feed including poultry except under regulations as may be promulgated by the secretary. (1965, No. 175, § 36; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2678. Penalties
Any handler, producer, or other person who violates any of the provisions of this part or the regulations promulgated thereunder, shall be fined not less than $25.00 or more than $1,000.00 or imprisoned for not more than one year, or both. (1965, No. 175, § 75.)
§ 2679. Administrative penalties
Any person who violates any provision of this chapter or any rule adopted under this chapter may be assessed an administrative penalty under section 15 of this title. (Added 1995, No. 128 (Adj. Sess.), § 4.)
§ 2680. Labeling milk as fresh
Milk shall not be labeled as "fresh milk," "Vermont fresh milk," or "northeastern fresh milk" unless the milk meets the definitions in section 2672 of this chapter. (Added 2007, No. 101 (Adj. Sess.), § 3, eff. April 22, 2008.)
§ 2701. Regulations
(a) The secretary, in accordance with chapter 25 of Title 3, shall promulgate, and may amend and rescind, dairy sanitation regulations relating to dairy products and imitation dairy products to enforce this chapter including but not limited to: labeling, weighing, measuring and testing facilities, buildings, equipment, methods, procedures, health of animals, health and capability of personnel and quality standards. In addition, the uniform regulation for sanitation requirements, as adopted by the National Conference on Interstate Milk Shippers, and published by the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, Grade A Pasteurized Milk Ordinance, together with amendments, supplements and revisions thereto, are adopted as part of this chapter, except as modified or rejected by regulation.
(b) The secretary shall promulgate and from time to time amend or terminate regulations concerning but not limited to the taking and storing of samples, sampling equipment, approved tests, testing equipment, methods and procedures for performing tests and related trade practices which are used as a basis for payment or acceptance for dairy products. The secretary shall make, amend or terminate regulations concerning examination for and the granting and terminating of dairy technician's licenses. (1965, No. 175, §§ 8, 32; amended 1969, No. 73, § 2, eff. April 18, 1969; 2001, No. 39, § 3; 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2702. Repealed. 1999, No. 49, § 121.
§ 2703. Grading services
The secretary is authorized to cooperate with the federal government in furnishing inspection or grading service for dairy products to milk handlers and other persons. The secretary shall establish uniform fees for this service. (1965, No. 175, § 34; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2704. Trustee of handlers' bonds
All bonds or other securities required and furnished under the provisions of this part shall be given to the secretary as trustee for each and all the producers in this state and shall be conditioned for the faithful performance by the handler of all the acts prescribed and all the conditions imposed upon the handler by this part, and for compliance by the handler of all the general laws of this state now in force or hereafter enacted and regulations pursuant thereto. (1965, No. 175, § 23; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2705. Revocation of licenses
(a) The secretary may after due notice and hearing revoke a handler's license if after due investigation made by him the handler is deemed to be in violation of any provisions of this part or the regulations promulgated thereunder. The secretary is charged with the administration and enforcement of this part.
(b) If the secretary is unable to secure compliance with the provisions of this part and the regulations promulgated thereunder, he shall report the matter to the attorney general, together with all relevant information. Except as provided in section 2881 of this title the attorney general shall take such action as the public interest requires, including injunctions or prosecution in any court of competent jurisdiction. (1965, No. 175, § 73; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2721. Handlers' licenses
(a) The secretary may classify and issue licenses to milk handlers to carry on milk handling businesses including, but not limited to, the purchase, distribution or sale of milk, processing or manufacturing of milk, bargaining and collecting for the sale of milk, and dealing in or brokering milk.
(b) A milk handler shall not transact business in the state unless the milk handler secures and holds a handler's license from the secretary. The license shall terminate September 1 each year and shall be procured by August 15 of each year. The secretary shall furnish all forms for applications, licenses and bonds. The milk handler shall pay a license fee of $200.00 for an initial application or a license fee of $50.00 for a renewal application at the time the application is delivered to the secretary.
(c) An imitation dairy products handler shall not transact business in the state unless he or she secures and holds an imitation dairy product handler's license from the secretary. The license shall terminate September 1 each year and shall be procured by August 15 of each year. The secretary shall furnish all forms for applications, licenses and bonds. The imitation dairy products handler shall pay a license fee of $200.00 for an initial application or a license fee of $50.00 for a renewal application at the time the application is delivered to the secretary. (1965, No. 175, § 17; amended 1969, No. 73, § 3, eff. April 18, 1969; 1975, No. 220 (Adj. Sess.), § 12; 1977, No. 159 (Adj. Sess.), § 1, eff. May 28, 1978; 1987, No. 217 (Adj. Sess.), § 1; 1989, No. 257 (Adj. Sess.), § 11; 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2722. -Application
Applications shall be completely filled out and sworn to by the applicant or a partner or officer thereof and in case of renewal shall be filed with the secretary by June 1 of each year. New handlers may apply for a license at any time. The application for a handler's license shall provide the following information and such other information as the secretary by regulation shall reasonably require:
(1) Name and address of applicant and the location of all plants and facilities owned or operated or to be owned or operated within the state of Vermont, outside the state of Vermont or both.
(2) A statement as to whether the applicant, or any partner, officer or director thereof, is presently the subject of any criminal, civil or disciplinary action by any federal or state agency or has been convicted of a crime relating in any way to the business of milk processing, marketing or both.
(3) The sources of supply of milk and the daily quantity purchased in the past 12 months; in the case of a new application, in addition to the foregoing, the applicant shall set forth its anticipated supply of milk and the daily quantity to be purchased from such sources. If a handler buys milk, or represents that he intends to buy milk, from Vermont producers, he shall provide a sworn balance sheet showing assets and liabilities and a profit and loss statement as of the end of the handler's preceding fiscal year and such other information regarding its financial condition as the secretary may require. In the case of a new application, these financial statements shall be accompanied by an opinion of a certified public accountant.
(4) In case milk has been purchased from Vermont producers, or the applicant represents that he intends to purchase milk from Vermont producers, the value of milk purchased for each of the preceding 12 months, or the value of the milk he intends to purchase for each of the succeeding 12 months from Vermont producers. In case purchases from Vermont milk producers during the license period vary in any one month by more than 20 percent from the amount stated on the application for the same month of the prior year or from the amount predicted for that month in the current year, as the case may be, the handler shall immediately notify the secretary in writing of the amount of variation.
(5) A statement as to when all Vermont producers will be paid in part and in full. Payment shall be made as agreed upon but shall not be later than the 25th of the following month.
(6) In the case of a new application, the applicant shall provide such results of health tests certified by an appropriate public agency as the secretary shall by regulation require. The secretary may issue regulations establishing what tests must be administered and by whom they must be certified.
(7) A statement that the handler will pay to the secretary all milk taxes required by law.
(8) A statement that the handler will comply with all the provisions of this part and the regulations promulgated thereunder. (1965, No. 175, § 16; amended 1977, No. 159 (Adj. Sess.), § 2, eff. May 28, 1978; 1987, No. 217 (Adj. Sess.), § 2; 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2722a. -Hearings, and action upon applications
(a) Upon receipt of an application for a milk handler's license the secretary shall examine it. If the application is deficient the secretart shall so notify the applicant and return the application together with one-half of the application fee within 30 days of the receipt of the application. If the application is not deficient, the secretary shall set a date for a hearing on the application, shall notify the applicant of that date and shall cause public notice of the hearing to be published in three newspapers of general circulation within the state. The hearing must be held within 60 days of receipt of an application but not less than 10 days after public notice has been published.
(b) In the case of a new application, the hearing shall be held in the area which the applicant intends principally to serve. Additional hearings may be held at the discretion of the secretary.
(c) In the case of a renewal application, a hearing in the discretion of the secretary may be held at Montpelier, or, in the discretion of the secretary, may be waived.
(d) The secretary shall act upon applications within 30 days of the hearing, or if the hearing in the case of a renewal application has been waived, within 60 days of receipt of the renewal application. If the secretary denies the license, he shall set forth his reasons.
(e) Any applicant whose application has been denied shall have the right to judicial review of the secretary's decision in the superior court. The proceeding before the superior court shall be de novo, and the applicant may demand trial by jury. Appeals from the superior court may be taken to the Vermont supreme court pursuant to the Vermont Rules of Appellate Procedure. (Added 1977, No. 159 (Adj. Sess.), § 3, eff. May 28, 1978; amended 1981, No. 237 (Adj. Sess.), eff. May 4, 1982; 1987, No. 217 (Adj. Sess.), § 3; 1997, No. 161 (Adj. Sess.), § 3, eff. Jan. 1, 1998; 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2723. -Exemptions
Handlers' licenses shall not be required from the following persons:
(1) Producers, except producers who sell fluid dairy products at retail in Vermont.
(2) A hotel, restaurant, or other public eating place that sells fluid dairy products for consumption on the premises, or a store which sells packaged dairy products, provided the entire supply of fluid dairy products is purchased from licensed milk handlers.
(3) A person producing unpasteurized milk under chapter 152 of this title, with respect to the sale of that unpasteurized milk only. (Added 1965, No. 175, § 18; amended 2007, No. 101 (Adj. Sess.), § 1, eff. April 22, 2008; 2009, No. 62, § 3.)
§ 2723a. Distributors' licenses
(a) It shall be unlawful for any person to distribute fluid dairy products as a distributor, as defined in this chapter, without a license issued by the secretary. The secretary shall license all distributors annually. Application for the license shall be made to the secretary upon a form furnished by the secretary. The application shall be accompanied by an annual license fee of $15.00 for one year or any part thereof. The license period shall be from January 1 to December 31.
(b) No person shall be granted a distributor's license under this section unless the distributor first agrees to withhold the state tax on producers whose milk has been received by the distributor imposed under chapter 161 of this title.
(c) Any distributor who carries on a business and fails to take out a license shall be subject to penalty under section 2678 of this title. (Added 2003, No. 70 (Adj. Sess.), § 66, eff. March 1, 2004; amended 2007, No. 157 (Adj. Sess.), § 11, eff. May 20, 2008.)
§ 2724. Technicians' licenses
(a) Any person who performs any tests, or determines weight or volume of dairy products where such determinations are used as a basis of payment or acceptance, shall hold an appropriate license or licenses issued by the secretary, which may be revoked for cause after giving the technician the opportunity to be heard. Before issuing a license the secretary shall determine that the applicant is qualified to perform the service stated in the license. Different licenses may be issued for different services. The applicant shall pay the secretary $15.00 for each examination. Licenses shall be issued for a period of three years from the date of issue and are renewable upon payment of a fee of $10.00. Licenses in effect on July 1, 1965, shall be renewed within 12 months but prior to the anniversary date of the original license.
(b) Any commercial enterprise which installs or repairs milking equipment on farms shall annually register with the secretary. The company shall apply for registration on a form made available by the agency. Before registering a company, the secretary shall determine that the company is qualified to perform the installation or repair service. The registration form shall be accompanied by a fee of $25.00. The secretary may suspend or revoke registration for cause after giving the installer the opportunity to be heard. Registration shall terminate on December 31 of each year. (1965, No. 175, § 10; amended 1975, No. 220 (Adj. Sess.), § 13; amended 1989, No. 257 (Adj. Sess.), § 12; 2003, No. 42, § 2, eff. May 27, 2003.)
§§ 2725, 2726. Repealed. 1989, No. 256 (Adj. Sess.), § 11(a), eff. Jan. 1, 1991.
§ 2727. Municipal licenses
The existing power of a municipality under special charter provisions to regulate and grant licenses for the handling, selling, or supplying of dairy products within its territorial limits shall not be repealed nor affected by the provisions of this part, except that no local license shall be granted to any person who does not hold a license required of him under this part. The suspension or revocation of a license under this part automatically shall suspend or revoke, as the case may be, any local license then held by the same person. (1965, No. 175, § 31.)
§ 2728. Manufacturing Grade Goat Milk
(a) "Manufacturing grade goat milk" is goat milk other than Grade A goat milk produced and distributed according to the Grade A Pasteurized Milk Ordinance.
(b) The maximum somatic cell count for manufacturing grade goat milk shall not exceed 1,500,000 per milliliter. (Added 2009, No. 48, § 10, eff. May 28, 2009.)
§ 2741. Milk plants and imitation dairy products plants
Before issuing a milk handler's license or an imitation dairy products handler's license and at least twice a year thereafter, the secretary shall inspect or cause to be inspected all milk plants and imitation dairy products plants as to their premises, equipment, procedures and sanitary conditions. He may enter into reciprocal agreements with or accept the inspection reports of appropriate dairy sanitation agencies of other states, municipalities or the federal government in lieu of inspection by the secretary, provided their standards and administration are substantially equal to the standards established by the secretary under the provisions of this chapter. (1965, No. 175, § 5; amended 1969, No. 73, § 4, eff. April 18, 1969; 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2742. Dairy farms
Before a dairy farm may sell or offer for sale, milk to a handler, and at least once a year thereafter, the secretary shall inspect or cause to be inspected all dairy farms as to their premises, equipment, dairy animals, procedures and sanitation conditions. He may enter into reciprocal agreements with or accept the inspection reports of appropriate dairy sanitation agencies of other states, municipalities or the federal government in lieu of inspection by the secretary, provided their standards and administration are substantially equal to the standards established by the secretary under the provisions of this part. All milk producers shall comply with state-federal-cooperative livestock disease control and/or eradication programs. (1965, No. 175, § 6; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2743. Dairy laboratories
(a) The secretary shall, at least annually, inspect or cause to be inspected all premises where dairy products are tested to determine the basis of payment or acceptance. Each handler shall notify the secretary of the place in which tests of producer's dairy products are conducted. Such tests shall be performed only by licensed technicians.
(b) The secretary shall at least annually inspect approved dairy laboratories and if qualified they shall be so certified by the secretary.
(c) In the event that an approved dairy laboratory in which tests are made does not comply with the provisions of this part or regulations issued thereunder, the secretary may forbid its use until subsequent inspection indicates compliance.
(d) In case the producer's milk is transported from the farm to a milk plant in another state, the purchaser shall keep the samples and test them at some approved place within the state of Vermont, or if the purchaser elects and agrees to pay the additional cost of supervision by the secretary or his agent, he may test the samples in another state in the plant where the milk is first received from the farm. All testing shall be done by persons holding a testing license issued by the secretary. The secretary may enter the premises of a milk handler and take possession of any or all samples including those from milk producers' deliveries and test them. (1965, No. 175, § 11; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2744. Enforcement
(a) Enforcement of dairy sanitation regulations in milk plants. In the event that inspection of milk plant discloses conditions not meeting the standards established in this part or the regulations promulgated thereunder, the handler shall be directed how to secure compliance with the terms of this part and the regulations thereunder. The secretary shall allow a reasonable time to correct the unsatisfactory conditions. At the expiration of the time granted for correction another inspection shall be made. If conditions are then found in violation of this part or the regulations thereunder, the secretary shall require the appearance of the handler before the secretary to show cause why his handler license should not be suspended or terminated. In this event the handler shall give the secretary a list of producers supplying him milk and the secretary shall give notice to producers of the pending suspension.
(b) Enforcement of dairy sanitation regulations on dairy farms. In the event that inspection of a dairy farm discloses conditions not meeting the standards established in this part, or the regulations promulgated thereunder, the producer and the handler concerned shall be notified in writing clearly stating the unsatisfactory conditions. The producer shall be advised as how to secure compliance with the terms of this part and the regulations thereunder. The secretary shall allow the producer a reasonable time to correct the unsatisfactory conditions. At the expiration of this time granted for correction or as soon as feasible thereafter, another inspection shall be made. If conditions are then found in violation of this part or the regulations thereunder, the secretary shall require the producer to appear before him to show cause why his right to sell milk should not be suspended or terminated. If the producer's right to sell milk is suspended or terminated, the secretary shall then notify the appropriate handler to stop handling the milk from this producer. No other handler processing or packing fluid dairy products shall handle milk from this producer. In the event that a producer corrects the unsatisfactory conditions to the satisfaction of the secretary as determined by inspection, the secretary shall immediately notify the appropriate handlers.
(c) Prohibition on sales or transfers. In the event that any inspection or test of a milk plant or dairy farm discloses conditions which are of immediate and serious danger to public health, the handler or the producer may be at once forbidden to sell or transfer dairy products for human consumption until subsequent inspection or test indicate that the danger to public health no longer exists.
(d) Right of entry. The secretary or his agent may for the purpose of inspection enter at all reasonable times the premises, except the residence, of all milk handlers and producers and examine all pertinent records and personnel and may use reasonable means of determining the sanitary condition of the entire milk producing and handling process. Refusal to permit inspection shall be grounds for revoking a license. (1965, No. 175, § 7; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2744a. Drugs
(a) No producer shall sell milk which contains any drug or drugs in excess of tolerances established by the United States Food and Drug Administration in the Code of Federal Regulations.
(b) In the event that milk from a dairy farm contains a drug, no more milk produced by that producer shall be received by any milk dealer, or handler, for a period of up to two days. In the event of a second violation within a 12-month period, no more milk produced by that producer shall be received by any milk dealer, or handler, for a period of up to four days. In the event of a third violation within a 12-month period, the secretary shall, at a minimum, take the same action as required for a second violation and may prohibit the producer from selling milk in this state. No handler, or dealer, shall accept milk from a producer whose ability to sell milk is suspended or terminated.
(c) In lieu of suspending a producer's ability to sell milk, the secretary may issue an administrative penalty. The amount of the penalty shall not exceed the value of the milk which could have been prohibited from sale. A producer who fails to pay an administrative penalty, after opportunity for hearing, shall have his, or her, ability to sell milk suspended until the penalty is paid. In lieu of suspending a producer's ability to sell milk, the secretary may accept the assessment by the milk dealer or handler, against the producer, of damages beyond the milk dealer's, or handler's control which occurred as a result of purchasing the contaminated milk, as an equivalent penalty.
(d) Before issuing an order or administrative penalty under this section, the secretary shall provide the producer and the handler, or dealer, an opportunity for hearing. Notwithstanding this requirement, the secretary may at any time issue an emergency order prohibiting a producer from selling, and a handler from accepting, any milk until the milk tests negative for drugs. (Added 1991, No. 232 (Adj. Sess.), § 2; amended 1997, No. 88 (Adj. Sess.), § 2; 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2751. Unfair discrimination
A handler doing business in this state and engaged in the business of buying dairy products for the purpose of manufacture or sale who, or whose agents, officers, or employees, shall begin or continue such methods or practices as to create a monopoly, or to restrain trade or to prevent or limit competition or to destroy the business of a competitor, or to destroy or affect adversely the operations of a producers' cooperative bargaining or marketing association organized under the Vermont cooperative marketing act, subchapter 2 of chapter 7 of Title 11 or similar laws of another state and doing business in Vermont, shall discriminate between different sections, communities, localities, cities or towns of this state by purchasing such commodity at a higher price or rate in one section, community, location, city or town than is paid for the same commodity by such person, firm, handler, association or corporation in another section, community, locality, city or town after making due allowance for the difference, if any, in the grade or quality and in the actual cost of transportation from the point of purchase to the point of manufacture or sale, or who shall so discriminate between different persons in the same section, community, location, city or town by purchasing such commodity at a lower price from one person than paid for the same commodity to another person after making due allowance for the difference, if any, in the grade or quality and in the actual cost of transportation from the point of purchase to the point of manufacture, or who shall so discriminate between different persons by refusing to purchase, within the limits of its actual requirements, such commodities from a person, or his agent, offering the same for sale, on the ground that such person has executed a marketing contract with a cooperative marketing association by the terms of which such cooperative marketing association has been designated the marketing agent of such person for such commodities, or who shall intimidate or attempt to intimidate members of such a producers' cooperative bargaining association for the purpose of causing them to withdraw from such membership or who shall intimidate or attempt to intimidate producers of dairy products for the purpose of preventing them from joining such an association shall be deemed guilty of unfair discrimination. It shall not be necessary to prove intent in reference to the methods or practices prohibited in this section, nor shall this section be construed to prevent milk handlers from paying, and milk producers who have installed farm bulk tanks from receiving such payments in addition to the payment for can milk as may be mutually agreed upon. (1965, No. 175, § 37.)
§ 2752. Refusal to purchase; hearing; secretary's order
(a) A handler doing business in this state who has a contract either verbal or written with a producer residing in this state for the purchase of such producer's dairy products shall not refuse to purchase them from the producer except for violations of the sanitary regulations or standards applicable to the market in which the dairy product is sold or marketed, without being deemed guilty of unfair discrimination. In the event that the refusal is to be based upon reasons of over-supply or other reasonable grounds, the refusal shall not become operative until the purchaser has given the producer at least ninety days' notice of intention to refuse the producer's product on such grounds, which shall be particularly set forth in writing so that the producer may be fully appraised thereof.
(b) If the producer desires to question the existence or validity of such grounds of refusal, he may do so within ninety days after receiving the notice or refusal by requesting the secretary of agriculture, food and markets for a hearing, and the secretary is hereby given jurisdiction to hear and determine the question. The producer shall make complaints of such contemplated refusal in writing to the secretary, setting forth the substance of the refusal notice and requesting to be heard thereon. The secretary shall then notify both the producer and the purchaser in writing, sent to them by registered mail, of the time and place of hearing thereon. The time of the hearing shall not be less than 10 nor more than 30 days from the date of the notice. Hearing shall be informal. Both parties shall have an opportunity to produce evidence.
(c) The decision of the secretary, as to whether or not the grounds relied upon by the purchaser are reasonable in fact shall be final. Either party shall have the right to appeal any question of law to the superior court where the producer resides. If the secretary, or the superior court on appeal therefrom, does not sustain the action of the purchaser, the purchaser shall be deemed guilty of unfair discrimination.
(d) If a request for a hearing is made by a purchaser, refusal of the purchaser shall not become operative until hearing and decision in the purchaser's favor by the secretary.
(e) A contract shall exist between the producer and the purchaser, when the purchaser receives the producer's dairy product regularly and pays him the going price therefor. (1965, No. 175, § 38; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2753. Segregation of products
No person may simultaneously display dairy products and imitation dairy products for sale at retail in the same establishment unless they are in separate cases, or in the same case, separated by a barrier, and marked, respectively, as "dairy products" and "imitation dairy products." (Added 1969, No. 73, § 7, eff. April 18, 1969.)
§ 2754. [Terminated.].
§ 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 Vermont and 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. (Added 1997, No. 154 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 2761. Definitions
For the purpose of this subchapter:
(1) "Secretary" means the secretary 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 secretary.
(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. (Added 1997, No. 154 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2003, No. 42, § 2, eff. May 27, 2003, eff. May 27, 2003.)
§ 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 of such 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 secretary 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 secretary 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 are derived 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. (Added 1997, No. 154 (Adj. Sess.), § 1; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2763. Secretary's verification
(a) The secretary 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 section 2762 of this title, the secretary shall immediately so notify the attorney general and the handler concerned.
(b) The secretary is authorized to investigate when he or she deems appropriate, and the secretary 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 secretary 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 secretary is authorized to confirm a producer's claim of non-rbST use pursuant to subdivision 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 secretary 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 secretary. In the event the secretary is investigating a producer's claim of non-rbST use pursuant to subdivision 2762(1) of this title, a supplier shall when requested by the secretary make available to the secretary records of business transactions with the producer under investigation by the secretary.
(e) If the secretary determines that the claims of a milk handler of non-rbST use pursuant to section 2762 of this title cannot be verified, the secretary shall immediately so notify the attorney general and the handler concerned. (Added 1997, No. 154 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2003, No. 42, § 2, eff. May 27, 2003; 2009, No. 33, § 13.)
§ 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 secretary may seek search warrants and accept assurances of discontinuance under section 1, 12, or 13 of this title, 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. (Added 1997, No. 154 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2765. Milk purchase refusal
TITLE 6
Agriculture
PART VI
Milk and Milk Products
CHAPTER 151. SUPERVISION, INSPECTION AND LICENSING OF DAIRY OPERATIONS
Subchapter V. rbST Labeling
§ 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 of section 2752 of this title. (Added 1997, No. 154 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 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 secretary, 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 secretary 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. (Added 1997, No. 154 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 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 secretary:
(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 secretary 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 secretary 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. (Added 1997, No. 154 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 2768. Rules
The secetary may adopt rules to implement this subchapter. (Added 1997, No. 154 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2003, No. 42, § 2, eff. May 27, 2003.)