§ 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.