H. B. 2602
(By Delegate D. Miller)
[Introduced March 16, 1993; referred to the
Committee on Agriculture and Natural Resources then Finance.]
A BILL to amend chapter nineteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article sixteen-b,
relating to pure food; providing a purpose; legislative
findings; defining certain terms; the power of the
commissioner of agriculture to adopt rules; hearing and
appeal procedures; orders, inspections and enforcement;
civil and criminal penalties; required cooperation by police
and other agencies; authorizing the commissioner of
agriculture to issue subpoenas, place embargoes, establish
quarantines, confiscate and condemn food and impose
restrictions on production, storage and transportation
facilities; and transferring certain personnel and salaries
from the department of health and human resources to the
agriculture commissioner's office.
Be it enacted by the Legislature of West Virginia:
That chapter nineteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article sixteen-b, to
read as follows:
ARTICLE 16B. WEST VIRGINIA PURE FOOD LAW.
§19-16B-1. Purpose and legislative findings.
(a) The purpose of this article is to consolidate under the
commissioner of agriculture of West Virginia the duties and
authority for inspection and regulation of all food and food
products used or intended to be used for human consumption in
this state, and to establish standards for product identity,
product testing, product adulteration, product labeling
requirements, and the regulation of product markets in order to
assure the safety and integrity of all food and food products
used or intended to be used for human consumption in this state.
This article is further designed to assure that the department of
agriculture has the primary responsibility for the development of
all food, food products, and dairy standards, inspections and
testing from the producer to the market place, and to authorize
the commissioner of agriculture to administer and issue rules
governing food and food products except for water or bottled or
canned beverages.
(b) The Legislature finds that unless the state undertakes
efforts to provide for adequate and proper testing, inspection,
and regulation of all food and food products used or intended to
be used for human consumption and unless the state establishesreasonable and proper standards for product identity, product
adulteration, product labeling requirements, and product market
regulation, the health and welfare of the citizens of this state
is endangered. The Legislature further finds that the testing,
inspection, and regulation of all food and food products used or
intended to be used for human consumption in the state, and the
establishment of standards related to product identity, product
adulteration, product labeling requirements and product marketing
are essential in protecting the health and general welfare of the
citizens of this state.
§19-16B-2. Definitions.
(a) "Commissioner" means the commissioner of agriculture or
his or her duly authorized agent.
(b) "Food" means all articles used or intended to be used
for food by humans whether simple, mixed, or compound and
includes: confectionery, condiment, meat and meat products, milk
and milk products, poultry and poultry products, fruit and fruit
products, vegetables and vegetable products, grains, hays,
aquaculture, hydroponics and products derived therefrom, syrups,
molasses, honey, vinegar and such other products as may be
manufactured or prepared which are used for food, except water or
bottled or canned beverages.
§19-16B-3. Standards.
In addition to all other powers, duties, responsibilities
and authority granted and assigned to the commissioner of
agriculture under the provisions of this code and elsewhereprescribed by law, the commissioner of agriculture is hereby
empowered and authorized to adopt legislative rules in compliance
with the provisions of chapter twenty-nine-a of this code, the
administrative procedures act, as are necessary to carry out the
provisions of this article. The commissioner:
(a) May adopt product, subproduct, imitation product and
like product standards of identity for the various food articles,
and so far as is practical such standards shall conform to those
established by the United States secretary of agriculture or the
United States secretary of health and human services;
(b) May establish standards for premises, facilities,
equipment and materials used to produce, process and distribute
food articles in this state;
(c) May establish standards for manufacturing,
remanufacturing, processing, storage and distribution of food
articles;
(d) May prescribe minimum procedures for cleaning,
sanitization, and maintenance of equipment and facilities used to
process, manufacture, store or distribute food articles;
(e) May prescribe standards for pasteurization,
ultrapasteurization, irradiation and hermetically sealed
containers; and
(f) Shall adopt standards for product sampling, laboratory
analysis and designate samples and findings as official.
§19-16B-4. Hearings and appeals.
(a) Any person aggrieved by action taken under this articlemay request a hearing on the matter.
(b) Upon the receipt of a request for a hearing by the
commissioner, the commissioner shall attempt to resolve the
matter informally. If the commissioner is unable to resolve the
matter informally, the commissioner shall schedule a hearing on
the matter within sixty days. Hearings shall be conducted
according to rules established by the commissioner and shall be
held in either the county of Kanawha or in the county in which
the action leading to the grievance occurred at the discretion of
the commissioner.
§19-16B-5. Orders, inspections and enforcement; civil and
criminal penalties.
(a) If the commissioner of agriculture, upon inspection, or
investigation by duly authorized representatives, or through
other means, observes, discovers, or learns of a violation of
this article, its rules, or any order issued under this article,
he may:
(1) Issue an order stating with reasonable specificity the
nature of the alleged violation and requiring compliance
immediately or within a specified time period. An order under
this section includes, but is not limited to, orders requiring
remedial action or cease and desist orders.
(2) Seek an injunction against any person in violation of
any provisions of this article or any rule issued pursuant to
this article. In seeking such an injunction, it is not necessary
for the commissioner of agriculture to post bond nor to allege orprove at any stage of the proceeding that irreparable damage will
occur if the injunction is not issued or that the remedy at law
is inadequate. An application for injunctive relief through this
section may be filed and relief granted notwithstanding the fact
that all administrative remedies provided for in this article
have not been exhausted or invoked against the person or persons
against whom such relief is sought.
(3) Seek the issuance of a civil administrative penalty
against any person who violates any provision of this article, or
any rule or order issued pursuant to this article. A fine issued
under this section may not exceed five thousand dollars for each
day of violation and may not exceed a maximum of twenty-five
thousand dollars. In assessing any penalty, the commissioner
shall take into account the seriousness of the violation and any
good faith efforts to comply with the applicable requirements, as
well as any other appropriate factors as may be established by
the commissioner by rules promulgated under this article. No
assessment may be levied pursuant to this subsection until after
the alleged violator has been notified by certified mail or
personal service. The notice shall include a reference to the
section of the statute, rule or order that was allegedly
violated, a concise statement of the facts alleged to constitute
the violation, a statement of the amount of administrative
penalty to be imposed and a statement of the alleged violator's
right to a hearing. The alleged violator has twenty calendar
days from receipt of the notice within which to deliver to thecommissioner a written request for a hearing. If no hearing is
requested, the notice shall become a final order after the
expiration of the twenty-day period. If a hearing is requested,
the commissioner shall inform the alleged violator of the time
and place of the hearing. The commissioner may appoint an
assessment officer to conduct the hearing and then make a written
recommendation to the commissioner concerning the assessment of
a civil administrative penalty. Within thirty days following the
hearing, the commissioner shall issue and furnish to the alleged
violator a written decision, and the reasons therefore,
concerning the assessment of a civil administrative penalty. The
authority to level a civil administrative penalty is in addition
to all other enforcement provisions of this article and the
payment of any assessment does not affect the availability of any
other enforcement provision in connection with the violation for
which the assessment is levied. No assessment levied pursuant to
this article becomes due and payable until the procedures for
review of such assessment as set out herein have been completed.
(4) Request the attorney general, or the prosecuting
attorney of the county wherein the alleged violation occurred, to
bring an appropriate action, either civil or criminal.
(b) In addition to any of the provisions set forth herein,
any person who willfully or negligently violates the provisions
of this article, or any rule or order issued pursuant to this
article, is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than one thousand dollars orimprisoned in jail for not more than thirty days or both fined
and imprisoned.
(c) No person may recover damages for any administrative
actions taken under this article, if the court finds there was
probable cause for the administrative action.
§19-16B-6. Cooperation with other entities.
(a) The commissioner may cooperate with and enter into
agreements with governmental agencies of this state, other
states, agencies of the federal government, agencies of foreign
governments and private associations or institutions in order to
carry out the purpose and provisions of this article.
(b) In the event of an emergency or a disaster, the
commissioner may request the assistance of local law enforcement,
the state police or other governmental agencies as are necessary
to carry out the provisions of this article. It is the duty of
the local law enforcement agencies, state police or other
governmental agencies to render assistance as requested.
(c) The commissioner may certify and contract with other
governmental agencies, private entities and individuals to
perform services necessary to enforce the provisions of this
article when it appears to be in the interest of the public in
general or a requirement of the law in particular.
§19-16B-7. General provisions.
(a) In order to administer the provisions of this article,
the commissioner may issue subpoenas and subpoenas duces tecum in
accordance with the provisions of section one, article five,chapter twenty-nine-a of this code.
(b) Administrative rules currently in effect are retained
and the procedures for registration, licensing, issuance of
permits and payment and collection of fees remain intact.
(c) The provisions of this article authorize the
commissioner to implement approved advancements in technology in
order to meet the challenges and demands of commerce, and to
protect, promote and preserve the public health and welfare.
(d) The commissioner may issue embargoes, establish
quarantines, confiscate and condemn food articles, food
processing equipment or materials and impose such restrictions on
production, storage and transportation facilities as are
necessary to carry out the intent and provisions of this article.
§19-16B-8. Personnel transfers.
Individuals presently employed by the division of health and
human resources conducting dairy farm inspections, together with
their equipment, are herewith transferred to the department of
agriculture. These transfers, along with the funding for the
salaries, fringe benefits, and travel expenses of the transferred
employees are also transferred effective July one, one thousand
nine hundred ninety-three.
NOTE: The purpose of this bill is to give the commissioner
of agriculture comprehensive authority over the production,
distribution and safety of all food and food products used or
intended to be used for human consumption. The bill gives the
commissioner of agriculture the authority to promulgate rules,
establish an appeals and hearing system, and to assess civilpenalties. The bill also transfers personnel and salaries of
employees of the department of health and human resources who
conduct inspections of dairy farms and equipment to the office of
the commissioner of agriculture.
This article is new; therefore, strike-throughs and
underscoring have been omitted.