Chapter 197 Oregon Laws 1999

Session Law

AN ACT

SB 234

Relating to milk products; creating new provisions; amending ORS 621.010, 621.020, 621.060, 621.062, 621.065, 621.070, 621.072, 621.077, 621.083, 621.084, 621.088, 621.089, 621.105, 621.115, 621.117, 621.118, 621.120, 621.124, 621.161, 621.166, 621.171, 621.176, 621.181, 621.193, 621.198, 621.201, 621.206, 621.216, 621.226, 621.236, 621.241, 621.246, 621.251, 621.266, 621.276, 621.281, 621.286, 621.297, 621.311, 621.320, 621.335, 621.340, 621.345, 621.368, 621.369, 621.405, 621.410, 621.418, 621.435, 621.445, 621.661, 621.666, 621.720, 621.730, 621.740 and 621.750; and repealing ORS 621.005, 621.055, 621.085, 621.090, 621.095, 621.100, 621.102, 621.119, 621.151, 621.152, 621.156, 621.186, 621.211, 621.221, 621.231, 621.256, 621.291, 621.305, 621.315, 621.325, 621.330, 621.348, 621.350, 621.352, 621.355, 621.357, 621.360, 621.365, 621.367, 621.416, 621.420, 621.425, 621.429, 621.440, 621.656, 621.754 and 621.990.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 to 5 of this 1999 Act are added to and made a part of ORS chapter 621.

SECTION 2. As used in this chapter, unless the context requires otherwise:

(1) "Container" means milk and cream cans, farm milk tanks, milk tank trucks, milk storage tanks, pasteurizing vats, cheese vats, butter churns, butter tubs, cheese hoops and any other receptacle designed for use or used to hold fluid milk, milk or dairy products.

(2) "Cream" means that portion of milk consisting of milk fat.

(3) "Dairy products" means:

(a) Butter.

(b) All varieties of cheese, frozen desserts and frozen dessert mixes containing milk, cream or nonfat milk solids.

(c) Evaporated, condensed, concentrated, powdered, dried or fermented milk, whey, cream and skimmed milk.

(4) "Dairy products plant" means:

(a) An establishment where milk is received, processed or used in manufacturing dairy products for human consumption.

(b) A place or premises where milk is received or collected.

(c) A bulk tank truck or other mobile equipment used by a milk hauler or other person in the transportation of milk, fluid milk or milk products.

(d) A location operated by a nonprocessing cooperative, corporation, association or person serving as a marketing agent for producers.

(5) "Department" means the State Department of Agriculture.

(6) "Disease-free herd" means a herd of cows, sheep or goats that is not an infected herd. As used in this subsection, "infected herd" means a herd of cows, sheep or goats in which one or more reactor animals have been discovered by any test authorized by law and that has not regained its disease-free status following the slaughter of the reactor animals and retesting of the herd as prescribed by the department.

(7) "Distributor" means a person who purchases only unpasteurized milk and pasteurizes or otherwise processes that milk, then bottles and distributes the milk for human consumption.

(8) "Fluid milk" means milk and any other product made by the addition of a substance to milk or to a liquid form of milk product if the milk or other product is produced, processed, distributed, sold or offered or exposed for sale for human consumption. Fluid milk includes sterilized fluid milk products and the fluid milk products for which a standard of identity has been established by the department.

(9) "Frozen dessert" means a food product that is defined and standardized by rule under ORS 621.311.

(10) "Frozen dessert mix" means the unfrozen, blended ingredients, in liquid or powdered form, from which frozen desserts are made by freezing the mix ingredients to a solid or semisolid consistency.

(11) "Frozen dessert retailer" means a person who freezes or makes frozen desserts for direct sale to or use by a consumer.

(12) "Frozen dessert wholesaler" means a person, other than a frozen dessert retailer, engaged in the business of freezing or making frozen desserts for sale. "Frozen dessert wholesaler" does not include interstate carriers, health care facilities as defined in ORS 442.015, domiciliary care facilities as defined in ORS 443.205, schools, institutions or fraternal, social or religious organizations or persons engaging in occasional or incidental sales as defined by department rule.

(13) "Imitation milk product" means:

(a) A compound of milk and edible oil or fat, other than natural milk fat, with or without other ingredients.

(b) A compound or product that is not a fluid milk product, that is made to have or has the appearance, taste or texture of a fluid milk product or a general composition similar to that of a fluid milk product, for which a standard of identity has been established by the department, and that may reasonably be mistaken for a fluid milk product.

(14) "Milk" means the lacteal secretion of cows, sheep and goats.

(15) "Milk hauler" means a person who, in the course of employment, accepts bulk fluid milk and transports that commodity to a dairy products plant or a physical facility of a distributor or producer-distributor.

(16) "Nonprocessing distributor" means a person who sells fluid milk in consumer-sized units under the person's own brand or trade name after the milk has been processed and packaged by a distributor or producer-distributor.

(17) "Pasteurize" means the process established by the department pursuant to ORS 621.261 by which each particle of milk, cream or any other dairy product is treated, usually by heat, for the purpose of destroying or rendering harmless bacterial organisms, including pathogenic organisms and viruses.

(18) "Producer" means a person who engages in the production of unpasteurized milk on a dairy farm and does not bottle the milk on the premises where production occurs, in pasteurized or unpasteurized form and for human consumption.

(19) "Producer-distributor" means:

(a) A person who bottles milk on the premises where production occurs, in pasteurized or unpasteurized form and for human consumption.

(b) A person who purchases milk from a producer, pasteurizes that milk, then bottles it for distribution.

SECTION 3. The State Department of Agriculture may adopt rules establishing definitions and standards of identity for all types of cheese. To the extent that the department considers practicable and applicable in this state, the definitions and standards of identity established by rule of the department shall conform to the definitions and standards of identity made under 21 C.F.R. part 133. The department may change the definitions and standards of identity from time to time as the department considers desirable to conform with alterations or amendments to the federal definitions and standards of identity.

SECTION 4. A person shall not operate a dairy products plant or a physical facility of a distributor or producer-distributor that fails to conform to the standards prescribed pursuant to ORS 621.176 and 621.181.

SECTION 5. Violation of any provision of ORS 621.062, 621.070, 621.072, 621.084, 621.088, 621.115, 621.117, 621.118, 621.124, 621.161, 621.166, 621.198, 621.206, 621.216, 621.226, 621.286, 621.335, 621.340, 621.345, 621.418, 621.445, 621.666 or 621.730 or section 4 of this 1999 Act or any rule or standard adopted under ORS 621.060, 621.077, 621.083, 621.236 or 621.261, or failure to pay a fee assessed under ORS 621.166, is an unclassified misdemeanor punishable by a fine of not more than $1,000, imprisonment for not more than one year, or both.

SECTION 6. ORS 621.010 is amended to read:

621.010. (1)[(a)] If the State Department of Agriculture believes that any person is engaged in or is about to engage in any act or practice [which] that is a violation of ORS [621.055 to 621.124 or 621.151 to 621.291] 621.062, 621.070, 621.072, 621.084, 621.088, 621.115, 621.117, 621.118, 621.124, 621.161, 621.166, 621.198, 621.206, 621.216, 621.226 or 621.286 or section 4 of this 1999 Act or any rule or standard adopted under ORS 621.060, 621.077, 621.083, 621.236 or 621.261, the department may apply for a temporary restraining order or permanent injunction [restraining] pursuant to ORCP 79 or ORS 561.280 prohibiting the person from [violating the provisions of those sections] engaging in that act or practice. The application for the order or injunction may be made to the circuit court of any county in which the person is engaged in or is about to engage in the unlawful act or practice.[, and such court has jurisdiction to grant a temporary or permanent injunction without bond. No injunction under this section shall be granted without notice to the person sought to be enjoined unless it appears from facts shown by affidavit that serious injury to the public health would result before the matter can be heard on notice, in which case the court may grant a temporary injunction.] Notwithstanding ORCP 82, no security shall be required of the department to obtain the restraining order or injunction. The remedy provided the department by this section is in addition to all other remedies, civil and criminal.

[(b) In case a temporary injunction is granted without notice, in the contingency specified in paragraph (a) of this subsection, the matter shall be made returnable on an order requiring cause to be shown, on the earliest day that the business of the court will permit, but not later than seven days from the date of such order, why the injunction should not be continued. When the matter first comes up for hearing after a temporary injunction has been granted without notice, the department must be ready to proceed and must have served upon the defendant, at least two days prior to such hearing, a copy of the original or an amended application for the temporary injunction and of the affidavits to be used in support of such application; if the department is not ready, or if the department fails to serve the defendant with a copy of the application and affidavits as required, the court shall dissolve the temporary injunction. The defendant, however, shall be entitled to one continuance for a reasonable period, if the defendant desires it, to enable the defendant to meet the application for the temporary injunction. The defendant may, in response to such order to show cause, present affidavits relating to the matter, and if such affidavits are served on the department at least two days prior to the hearing, the department shall not be entitled to any continuance on account thereof. On the day upon which the matter is made returnable on an order to show cause, such hearing shall take precedence over all other matters on the calendar of said day, except older matters of the same character, and matters to which special precedence may be given by law. When the cause is at issue it shall be set for trial at the earliest possible date and shall take precedence over all other cases, except older matters of the same character, and matters to which special precedence may be given by law.]

(2) [The sole method of procedure available to an applicant or licensee where a license required by or issued under ORS 621.055 to 621.124 or 621.151 to 621.291 is refused, revoked or suspended is the procedure provided in ORS 183.310 to 183.550; and the] In a proceeding for an injunction under subsection (1) of this section, an applicant or licensee [shall] may not, as a defense, [be permitted to] litigate collaterally[, as a defense in a proceeding for an injunction under subsection (1) of this section,] any matter concerning the refusal to grant or the revocation or suspension of a license required by or issued under ORS [621.055 to 621.124 or 621.151 to 621.291] 621.070, 621.072, 621.161, 621.171 or 621.266 if the applicant or licensee was heard or might have been heard on [such] that matter directly in an administrative hearing under ORS [183.310 to 183.550] 183.413 to 183.470, or on an appeal from such a hearing.

SECTION 7. ORS 621.020 is amended to read:

621.020. [Notwithstanding all other laws to the contrary,] The State Department of Agriculture [in lieu of blood testing of dairy-type animals for brucellosis as provided or required by this chapter,] may approve [by regulation the procedures, processes, practices, methods and] the use of the Ring Test or the Whey Test as alternatives to blood testing of milk producing animals for brucellosis.

SECTION 8. ORS 621.060 is amended to read:

621.060. (1) The State Department of Agriculture shall establish official state standards of quality [shall be established by the State Department of Agriculture for fluid milk, sterilized, pasteurized and unpasteurized,] for all forms of fluid milk in the manner prescribed by ORS 632.900 to 632.935.

(2) The standards of quality established for fluid milk shall be based upon:

(a) The health of the cows, sheep and goats;

(b) The physical facilities of [dairies] dairy farms and milk processing plants;

(c) The standard of sanitary maintenance of [dairies] dairy farms and milk processing plants including equipment used therein, the cleanliness of operating personnel[,] and the cleanliness of adjacent land areas;

(d) The physical facilities for the transportation of fluid milk[,] and the methods and standards of sanitary maintenance of [such] those facilities;

(e) The quality [of the fluid milk as shown by an examination by means suitable to the determination of its quality, and also, the factors affecting the] and nutritional value of fluid milk as a human food as determined by examination; and

(f) Any other factor found by the department, upon hearing, to affect the quality, odor, flavor or wholesomeness of fluid milk.

(3) The department, by rule, may establish definitions and standards of identity for all types of fluid milk [and sterilized milk may be established by the department]. To the extent that the department considers practicable and applicable in this state, the definitions and standards of identity established by rule of the department shall conform to the definitions and standards of identity made under 21 C.F.R. part 131. The department may change the definitions and standards of identity from time to time as the department considers desirable to conform with alterations or amendments to the federal definitions and standards of identity.

SECTION 9. ORS 621.062 is amended to read:

621.062. [No] A person shall not process, distribute, sell[,] or offer [for sale] or expose for sale fluid milk [which] that does not conform to a standard of identity established by the State Department of Agriculture.

SECTION 10. ORS 621.065 is amended to read:

621.065. [There shall be] The State Department of Agriculture shall establish two standards of quality [established] for fluid milk. The highest standard of quality [established for fluid milk] shall be designated as "grade A." The other standard of quality shall be designated as "grade B."

SECTION 11. ORS 621.070 is amended to read:

621.070. [No] A person shall not use any grade designation on bottle caps, in advertising, on labels or in any other manner connected with the sale of fluid milk[,] unless the State Department of Agriculture has licensed the person [has obtained from the State Department of Agriculture a license] to use the grade designation.

SECTION 12. ORS 621.072 is amended to read:

621.072. (1) The State Department of Agriculture shall issue a license to use a grade designation to any person who:

(a) Makes written application for a license on forms provided by the department; [and]

(b) Pays the designated license fee;[,]

(c) Is engaged in the business of producing or distributing [, or both,] fluid milk;[,] and

(d) Meets the requirements of the particular grade designation for which application is made.

(2) If a person carries on [both] the activities of a producer and [of] a producer-distributor, [such] the person [shall] must obtain a separate license for each [such activity] of those activities. If a producer-distributor manufactures products from both grade A fluid milk and grade B fluid milk at the same premises, the producer-distributor must obtain separate licenses for grade A product manufacturing activity and grade B product manufacturing activity.

(3) Licenses issued under this section shall be personal and not transferable.

[(2) Each distributor who receives milk in producer containers shall designate at least one plant employee who shall obtain a license from the department authorizing such person to take samples of milk for analysis by the department.]

(4) Each milk hauler, milk receiver or other person who grades fluid milk as fit or unfit for processing as fluid milk due to quality, odor, flavor or wholesomeness [shall] must first obtain a license from the department authorizing [such] that person to sample and grade fluid milk. [The grader shall make a true written record of grade, the reason for rejection with the name of the producer, the date of rejection and the quantity involved. A copy of the record shall be made available to the department.] Each applicant for a milk sampler's and grader's license shall, [be required to] by written examination, demonstrate [satisfactorily by written examination given by the department] an adequate knowledge of milk sanitation as it relates to the sampling, grading and handling of fluid milk and cream for analysis. The department shall give examinations for licenses [shall be given by the department] at such times and [at such] places as appears to be necessary and [practical] practicable.

[(3)] (5) Before and after issuing a license to [an establishment] a person as a producer, producer-distributor, distributor or nonprocessing distributor of fluid milk, the department shall, as it deems necessary, inspect the physical facilities of the applicant's dairy, [or] milk processing plant or distribution center and [such] investigate other factors [as] the department determines may relate to the production, processing or distribution of fluid milk. The physical facilities [shall] must conform to the [requirements for the] production, processing [and] or distribution requirements for the [of] fluid milk [meeting the standards of quality for which the license to use the particular grade designation is sought] grade designation sought or held.

[(4)] (6) Each license issued under this section expires on June 30 next following the date of its issuance unless sooner revoked and may be renewed upon application of the licensee. Each application for a license or annual renewal thereof shall be accompanied by a license fee. The department shall establish the fees for the several types of licenses [shall be established by the department] in accordance with ORS 183.310 to 183.550[, and]. The fees shall not be less than $25 nor more than $750 for each category of activity specified in subsection [(5)] (7) of this section. [The license fees may be established at a specified amount for each category of activity, or may be established on the basis of the annual gross dollar volume of sales or services of each establishment in each of the categories. The license fees may be different for each category. In establishing the basis and amounts for the license fees the department shall consider, among other things, the number of establishments in each of the categories of activity, the various annual gross dollar volumes of business of the establishments, the differences in activities carried on at the establishments, and the cost of administration and enforcement of this chapter.]

[(5)] (7) The license fees established by the department[,] shall be for the following activities:

(a) Producer;

(b) Producer-distributor;

(d) Nonprocessing distributor; and

(e) Milk sampler and grader.

(8) A distributor or producer-distributor must obtain a license and pay the fee described under subsection (6) of this section for each physical facility used to produce, process or distribute fluid milk. A person is not required to obtain a license to be a distributor or producer-distributor to act as a milk hauler or to operate receiving or transfer stations in conjunction with a milk processing plant.

[(6)] (9) The department may refuse to issue or renew, or may suspend or revoke, a license for any violation of this section or ORS [621.055 to 621.120 or rule thereunder] 621.062, 621.070, 621.084, 621.088, 621.115, 621.117, 621.118 or 621.286 or processes or standards established under ORS 621.060 or 621.083.

SECTION 13. ORS 621.077 is amended to read:

621.077. All fluid milk [shall conform] is subject to the same bacterial standards as established by rule of the State Department of Agriculture.

SECTION 14. ORS 621.083 is amended to read:

621.083. The State Department of Agriculture [shall] may establish standards of procedure and acceptable types of equipment [which shall be used] for use by graders in taking and safeguarding samples of milk for analysis.

SECTION 15. ORS 621.084 is amended to read:

621.084. Distributors, [and] producer-distributors, dairy products plant licensees and all other purchasers of milk from producers shall weigh, sample and test fluid milk purchased by them from producers in the same manner as milk and cream are weighed, sampled and tested under ORS [621.231 to 621.251] 621.236.

SECTION 16. ORS 621.088 is amended to read:

621.088. [No] A producer, producer-distributor, distributor, [or] nonprocessing distributor [as defined by ORS 621.055,] or dairy products plant licensee [as defined by ORS 621.152, or a dairyman who produces and sells milk for manufacturing purposes, an employee or agent thereof] shall not offer or expose for sale, sell, exchange, [or] deliver, [to any person, the retail trade or other places or have in possession or under control,] possess or control with intent to sell, expose[,] for sale or deliver, purchase for resale or receive for manufacture, any milk or cream to which water has been added, as evidenced by official State Department of Agriculture laboratory [test] testing, except as may be permitted by the department in:

(1) The reconstitution of fluid milk; or

(2) The transportation of the product containing added water to a dairy products plant[, as defined in ORS 621.152,] for recovery of the milk food solids.

SECTION 17. ORS 621.089 is amended to read:

621.089. The provisions of ORS [621.055 to 621.120] 621.062, 621.070, 621.072, 621.084, 621.088, 621.115, 621.117 and 621.118 and standards developed under ORS 621.060, 621.077 or 621.083 do not apply to a person owning not more than three dairy cows that have calved at least once, nine sheep that have lactated at least once or nine goats that have lactated at least once, but such person may sell the fluid milk from [such] those animals for human or other consumption without complying with the provisions of ORS [621.055 to 621.120] 621.062, 621.070, 621.072, 621.084, 621.115, 621.117 or 621.118 or standards developed under ORS 621.060, 621.077 or 621.083 only if:

(1) The person does not advertise the milk for sale[.];

(2) The milk is sold directly to the consumer at the premises where produced[.]; and

(3) No more than two producing dairy cows, nine producing sheep or nine producing goats are located on the premises where the milk is produced.

SECTION 18. ORS 621.105 is amended to read:

621.105. (1) The State Department of Agriculture may[, for the purpose of assuring the people of this state a continuous and adequate supply of wholesome and nutritious fluid milk,] permit the entry and use in this state of fluid milk produced in other governmental units [under] subject to the conditions set forth in this section. For the purposes of this section, the term "governmental unit" means [and includes] any state, territory of the United States[,] or political subdivision [of such state or territory] thereof.

(2) The department shall investigate and survey the system of regulation of the fluid milk industry in effect in the governmental unit in which the fluid milk[, for which entry is sought,] is produced. The investigation shall be made into all the factors relating to the quality of fluid milk as prescribed in ORS 621.060. Upon a determination by the department that the system of fluid milk regulation in effect in [such] a governmental [units] unit is of a nature that will reasonably [assure] ensure that fluid milk produced thereunder will be of a quality substantially [as high as] equal to fluid milk produced in this state, the department may issue a permit to any person operating under that system for the movement of fluid milk into this state.

(3) Recognition by the department of the system of regulation and inspection of fluid milk produced or processed in any other governmental unit shall [only] be granted only in cases where [such] the other governmental unit grants a reciprocal recognition to fluid milk produced or processed in this state.

(4) The department may give full faith and credit to the acts of any other governmental unit administering a system of fluid milk regulation recognized by the department, suspending[, temporarily or permanently,] the right or privilege of any person under the jurisdiction of [such] that governmental unit to produce or process fluid milk.

(5) The department shall arrange with any other governmental unit administering and enforcing a system of fluid milk regulation recognized by the department for the exchange of information necessary to [assure] ensure an uninterrupted interchange of wholesome and nutritious fluid milk between [such] that governmental unit and this state.

[(6) Nothing in this section shall be construed to interfere with the operations and effect of ORS chapter 583 (1953 Edition).]

SECTION 19. ORS 621.115 is amended to read:

621.115. (1) [No] A person shall not sell, expose [for sale,] or offer for sale or knowingly transport fluid milk in containers:

(a) [Which] If the fluid milk has been produced [and] or processed [by a person who has not first obtained a license to use a state grade designation on fluid milk produced or processed by the person] in violation of ORS 621.070.

(b) [Which] If the container or container cap is not labeled [on the container or container cap] with the name and address of the producer, distributor, nonprocessing distributor or producer-distributor of the milk and the applicable state grade[; except that]. However, containers of unpasteurized fluid milk that are shipped by producers to a milk processing plant or a dairy products plant for pasteurization and [which] that are identified by shipper name or number shall not be required to be so labeled.

(2) [No] A person shall not bottle unpasteurized fluid milk except on the premises where it is produced.

(3) [No] A producer or [a] producer-distributor shall not sell or offer for sale fluid milk during the period [while such producer's or producer-distributor's] that the license of the producer or producer-distributor to use a grade designation on fluid milk has been suspended under ORS 621.072 or 621.120.

(4) [No] A distributor shall not knowingly purchase fluid milk from any person whose license to use a grade designation has been suspended under ORS 621.072 or 621.120.

(5) [No] A distributor shall not knowingly purchase fluid milk from any person [who has not received a license] other than a person licensed under ORS 621.072.

(6) Each container of fluid milk sold[,] or exposed [for sale,] or offered for sale[,] by a nonprocessing distributor shall be labeled on the container or on the container cap with either the name and address of the distributor or producer-distributor processing and bottling the fluid milk or with a code number, assigned by the State Department of Agriculture, identifying [such] the distributor or producer-distributor.

SECTION 20. ORS 621.117 is amended to read:

621.117. [No] A distributor, [or] producer-distributor [shall] or dairy products plant licensee shall not sell[,] or offer or expose for sale any dairy product or fluid milk for human consumption [which has not been pasteurized or] unless the milk used in the dairy product or fluid milk was produced by a [herd free of known disease] disease-free herd or has been pasteurized, except that [when] if not more than one reactor animal appears when the herd is tested for brucellosis, the milk, dairy products or fluid milk may still be sold if the animal is slaughtered and no additional reactor animals appear when the herd is retested, as provided in ORS chapter 596 and regulations promulgated thereunder [and no additional reactors appear]. If one or more [additional reactors appear in successive tests] reactor animals appear when the herd is retested, no milk, dairy products or fluid milk [may be sold] from [this] the herd may be sold until the herd regains a brucellosis-free status.

SECTION 21. ORS 621.118 is amended to read:

621.118. [(1) Where] If pasteurization equipment is used by a distributor or producer-distributor or at a dairy products plant, the distributor, producer-distributor or dairy products plant licensee shall ensure that the pasteurization process [shall be] is under the direct supervision of a pasteurizer operator licensed under ORS 621.266.[, and the provisions of ORS 621.261, 621.266 and 621.276 apply to such pasteurizer operator and the pasteurization process. If the pasteurizer operator fails to comply with the regulations promulgated by the State Department of Agriculture under ORS 621.261, the license of the pasteurizer operator may be revoked or suspended or otherwise limited.]

[(2) No distributor or producer-distributor shall operate or permit the operation of any pasteurization equipment except under the direct personal supervision of a person licensed as a pasteurizer operator under ORS 621.266.]

SECTION 22. ORS 621.120 is amended to read:

621.120. (1) In addition to the powers conferred on the State Department of Agriculture [pursuant to] under ORS [621.055 to 621.115] 621.060, 621.072, 621.083, 621.105, 621.115 and 621.226, the department may suspend the privilege of any person to use a grade designation on containers of fluid milk produced or distributed by the person. The power of suspension may be exercised by the department for any violation of ORS [621.055 to 621.120, or of the regulations promulgated under the authority of those sections] 621.062, 621.070, 621.072, 621.084, 621.088, 621.115, 621.117, 621.118, 621.226 or 621.286 (7), standards adopted under ORS 621.060, 621.077 or 621.083 or any department rules.

(2) [No] A suspension shall [be for a period longer than] not exceed 10 days [;] except that [in all cases], before lifting the suspension, the department shall [assure itself] ensure that the violation [for which] causing the suspension [was imposed] has been corrected [by the person against whom it was imposed before the suspension is lifted].

(3) [No] A suspension shall not be imposed for a violation unless the violator has previously committed the same violation and the department has, within the six months immediately preceding the violation for which the suspension is [to be] imposed, [first notified in writing] provided written notification to the [person to be suspended] violator that [a further] another violation of the same character [will] would be grounds for suspension [by the department]. The notice of suspension shall be in writing and shall state length of the suspension and the reason for the suspension.

(4) The provisions of ORS [183.310 to 183.550] 183.413 to 183.470 do not apply to suspensions imposed under authority of this section, [however,] although appeal shall be in the manner provided by ORS [183.480 to 183.550] 183.484, 183.486, 183.490 and 183.497. [Nothing in this subsection shall be construed to] This subsection shall not deprive [any] a person of the right to present any defense [the person may have] to a criminal prosecution instituted for violation of ORS [621.055 to 621.115] 621.062, 621.070, 621.072, 621.084, 621.088, 621.115, 621.117, 621.118, 621.226 or 621.286 (7), nor shall it deprive [the] a person of the right to a declaratory judgment [in a proper case].

SECTION 23. ORS 621.124 is amended to read:

621.124. [(1) As used in this section "test" means a test for brucellosis performed by a veterinarian in a manner approved by the State Department of Agriculture.]

[(2) The tests required by this section shall only be made by state, assistant state or deputy state veterinarians employed or appointed by the department, or veterinarians employed by the United States Department of Agriculture.]

[(3)] (1) [No] A person shall not sell[,] or offer or expose for sale any fluid milk with knowledge that [such] the milk has been produced from a herd of cows, sheep or goats, one or more of which [are] were infected with brucellosis at the time the milk was produced, or with knowledge that not all the animals in [such] the herd have [not] been tested or retested for brucellosis in a manner approved by the State Department of Agriculture.

(2) The tests described by this section shall be performed only by state veterinarians, assistant state veterinarians or deputy state veterinarians employed or appointed by the department, or by veterinarians employed by the United States Department of Agriculture.

SECTION 24. ORS 621.161 is amended to read:

621.161. [No] A person shall [engage in any of the activities in the operation of] not operate a dairy products plant unless that person has a valid dairy products plant license. A separate [plant] license [shall be obtained] is required for each dairy products plant operated. [by a person at which dairy products are processed. No] A person [shall be] is not required to obtain a dairy products plant license [while acting] to act as a milk hauler or [receiver, or for] to operate receiving or transfer stations [operated] in conjunction with a milk processing plant.

SECTION 25. ORS 621.166 is amended to read:

621.166. (1) Application for a dairy products plant license shall be made to the State Department of Agriculture on forms provided by the department. Each license and each annual renewal shall expire on June 30 next following its issuance. Dairy products plant licenses [issued under this section] are personal and are not transferable.

(2) Each dairy products plant [and each contract milk hauler] shall submit [an additional] a separate fee established by the department for each mobile milk tanker. The [additional fees] fee shall not apply to [any] a mobile milk tanker owned and operated by [any] a dairy products plant while transporting dairy products[, as defined in ORS 621.152 (3),] from [such] the dairy products plant to wholesale or retail outlets for [the purpose of sale thereof] those products. [For the purposes of this subsection] As used in this section, "mobile milk tanker" means [each individual] a tank or other receptacle that attaches to a bulk tank truck or [container] other equipment and is used to transport fluid milk, milk or milk products.

(3) The license fees shall be established by the department in accordance with ORS 183.310 to 183.550, and shall not be less than $25 nor more than $750 for each [establishment] dairy products plant or mobile milk tanker. [The license fees may be established at a specified amount for each category of activity described in ORS 621.152 (4), or may be established on the basis of the annual gross dollar volume of sales or services of each establishment in each of the categories. The license fees may be different for each category. In establishing the basis and amounts for the license fees the department shall consider, among other things, the number of establishments in each category of activities described in ORS 621.152 (4), the various annual gross dollar volumes of business of the establishments, and the costs of administration and enforcement of this chapter.]

SECTION 26. ORS 621.171 is amended to read:

621.171. (1) The State Department of Agriculture shall issue [the] a dairy products plant license under ORS 621.166 or a license under ORS 621.072 for a distributor or producer-distributor to use a physical facility when it determines that the dairy products plant or the facility to be operated by the applicant is in compliance with the [provisions of ORS 621.151 to 621.291 and the regulations issued under its authority] standards prescribed by the department pursuant to ORS 621.176 and 621.181.

(2) The department may refuse to issue or renew or may revoke or suspend the license of any person who fails to comply with the provisions of ORS [621.151 to 621.291] 621.198, 621.206, 621.216, 621.241 and 621.286 and section 4 of this 1999 Act and the regulations promulgated under [it] ORS 621.236 or 621.261.

SECTION 27. ORS 621.176 is amended to read:

621.176. [For the purpose of assuring] To ensure that the handling and processing of milk, fluid milk and dairy products is conducted in a sanitary environment [which will protect dairy products handled, processed or stored from contamination], the State Department of Agriculture shall prescribe minimum standards of construction for dairy products plants and physical facilities of a distributor or producer-distributor, including but not limited to[, the following] standards for:

(1) Floors, walls, ceilings.

(2) Doors and windows.

(3) Lighting and ventilation.

(4) Toilet and lavatory facilities.

(5) Water supply.

(6) Separation and partitioning of rooms for carrying on the several handling, processing and storage functions.

SECTION 28. ORS 621.181 is amended to read:

621.181. The State Department of Agriculture shall prescribe minimum standards of sanitation for the operation of dairy products plants and physical facilities of a distributor or producer-distributor including, but not limited to, [the following] standards for the:

(1) Washing, cleaning, maintenance and condition of floors, walls and ceilings of all rooms directly connected with the handling, processing and storage of dairy products, fluid milk or milk, and the equipment used therein, including bulk tank trucks and other mobile equipment used in the transportation of milk or cream from farm to plant or between plants.

(2) Health and cleanliness of personnel.

(3) Cleanliness and sanitation of surrounding premises.

(4) Disposal of all waste and sewage material.

(5) [Insect and rodent control] Control of insects and rodents.

(6) Construction, cleaning and sanitizing of utensils, containers and equipment used in direct contact with dairy products, fluid milk or milk.

SECTION 29. ORS 621.193 is amended to read:

621.193. [In accordance with any applicable provisions of ORS 183.310 to 183.550,] The State Department of Agriculture shall [promulgate rules prescribing] prescribe standards of construction and sanitation for bulk storage tanks, equipment, buildings and other facilities used by producers to store milk that is to be sold to a dairy products plant or to be used at a physical facility of a distributor or producer-distributor. [Such] The standards [of construction and sanitation are] shall be for the purpose of [insuring] ensuring the wholesomeness of milk, fluid milk and dairy products, and may include, but are not limited to, standards regulating the:

(1) Size, location, construction and sanitation of bulk storage tanks, equipment, buildings and other facilities.

(2) Lighting and ventilation.

(3) Water supply.

(4) Cooling equipment.

SECTION 30. ORS 621.198 is amended to read:

621.198. (1) [No] A producer shall not store milk that is to be sold to a dairy products plant or to be used at a physical facility of a distributor or producer-distributor, in bulk storage tanks, equipment, buildings or other facilities that do not conform to the standards prescribed pursuant to ORS 621.193.

(2) [No] A distributor, producer-distributor or dairy products plant licensee shall not receive or purchase milk from a producer, that is stored in bulk storage tanks, equipment, buildings or other facilities that do not conform to the standards prescribed pursuant to ORS 621.193.

SECTION 31. ORS 621.201 is amended to read:

621.201. (1) The State Department of Agriculture shall establish by rule, as provided in ORS 183.310 to 183.550, official state grades and standards of quality applicable to all milk, fluid milk and dairy products. [and official state standards of quality applicable to the several grades of cream. The several grades of cream shall be known, in descending order of quality, as: Premium grade, first grade and second grade. Separate reasonable grades and standards shall be established for milk and separate reasonable standards shall be established for each grade of cream. The grades and standards shall be based upon:]

[(a) Bacteriological examination or test of milk by the method known as the methylene blue test, or by other reliable methods.]

[(b) Sediment content.]

[(c) Acid content.]

[(d) Flavor.]

[(e) Odor.]

[(f) Condition of cleanliness.]

[(g) Wholesomeness.]

(2) The grades and standards for milk, fluid milk and dairy products [and the standards for the grades of cream] may from time to time be changed by the department as provided in subsection (1) of this section.

SECTION 32. ORS 621.206 is amended to read:

621.206. Each distributor, producer-distributor and dairy products plant licensee shall employ a grader who shall accurately and impartially grade all milk or fluid milk purchased by the distributor, producer-distributor or licensee from producers before it is commingled with other milk or otherwise loses its identity.

SECTION 33. ORS 621.216 is amended to read:

621.216. The grader shall make a true written record of the grade of all milk graded by the grader. The record shall also show the name of the producer, the date of delivery and of grading, and the quantity involved. The record shall be delivered to and retained by the distributor, producer-distributor or dairy products plant licensee for 30 days and shall be available for inspection by the producer of the milk and by the State Department of Agriculture.

SECTION 34. ORS 621.226 is amended to read:

621.226. (1) Whenever a grader determines that any milk, [or] cream, dairy product or fluid milk is unlawful, [he] the grader shall immediately affix a condemnation tag to [its] the milk, cream, dairy product or fluid milk container [a condemnation tag]. Condemnation tags shall be in [such] a form [as] prescribed by the State Department of Agriculture. The grader shall also thoroughly mix sufficient harmless red coloring matter with the condemned milk, [or] cream [some harmless coloring matter] dairy product or fluid milk to prevent the milk, cream, dairy product or fluid milk from being sold, offered or exposed for sale for human consumption.

(2) As used in this section, the term "unlawful [milk or cream]" means:

(a) Milk, [or] cream, [which] fluid milk or dairy product that contains dirt, filth, oil or other foreign matter [which] that may render [them,] the milk, cream, fluid milk or dairy product, or dairy products derived from them, unfit for human consumption.

(b) Milk, [or] cream, [which] fluid milk or dairy product that is stale, cheesy, rancid, putrid, decomposed or actively foaming.

[(c) Milk or cream which contains an unreasonable amount of sediment of any kind.]

SECTION 35. ORS 621.236 is amended to read:

621.236. (1) The State Department of Agriculture shall promulgate regulations relating to the weighing, sampling and testing of milk and cream. [on the following:]

[(a) The procedure and method of conducting the test required by ORS 621.231 (1), including the proper equipment to be used to assure uniformity and accuracy.]

[(b) The method of identification and preservation of samples of milk and cream.]

[(c) The method and frequency of weighing and sampling milk and cream.]

[(d) The making and preservation of records of the amount, grade and test of milk and cream received from individual producers.]

[(2) Subsection (1) of this section shall not be construed as a limitation on the authority of the department to make other necessary regulations.]

(2) The department shall ensure that all milk that a distributor, producer-distributor or dairy products plant licensee purchases from producers is tested by the distributor, producer-distributor or licensee for milk fat content using an accurate and efficient test approved by the department.

SECTION 36. ORS 621.241 is amended to read:

621.241. The producer of milk or cream, or the producer's agent, has the right to be present while the distributor, producer-distributor or dairy products plant licensee weighs, samples or tests the milk or cream, and to take samples of the milk or cream and have them privately tested. At the request of any producer, a distributor, producer-distributor or dairy products plant licensee shall notify the producer of the time and place where the milk or cream will be weighed, sampled or tested.

SECTION 37. ORS 621.246 is amended to read:

621.246. If a producer is damaged by an inaccurate weighing, sampling or testing of milk or cream by a distributor, producer-distributor or dairy products plant licensee or by the inaccurate recording of the results of any test by the distributor, producer-distributor or licensee, the producer may bring an action for those damages. The court may award reasonable attorney fees to the prevailing party in an action under this section.

SECTION 38. ORS 621.251 is amended to read:

621.251. (1) If a distributor, producer-distributor or dairy products plant licensee fails to comply with any provision of ORS 621.084, 621.206, 621.216, 621.226, 621.241 or 621.286 (7) to (10) or regulations adopted under ORS 621.236, the State Department of Agriculture may revoke the license or, [in lieu of revoking the license of any licensee, and] with the [licensee's] written consent of the distributor, producer-distributor or licensee, may [take charge of] perform the weighing, sampling and testing of the milk or cream received or purchased by the distributor, producer-distributor or licensee.

(2) [In this event,] The department shall employ competent personnel of its own choice to perform the [required] weighing, sampling or testing under subsection (1) of this section. The salary and necessary expenses of [such] the personnel shall be paid by the department[, who shall be reimbursed by the licensee each month]. The distributor, producer-distributor or licensee shall reimburse the department for the salary and expenses monthly.

(3) The department shall continue [in charge of] to perform the weighing, sampling and testing of the milk or cream received or purchased by the distributor, producer-distributor or dairy products plant licensee until [such time as] the department is satisfied that the distributor, producer-distributor or licensee [will and can] is willing and able to comply with all the provisions of ORS [621.151 to 621.291] 621.084, 621.206, 621.216, 621.226, 621.241 and 621.286 (7) to (10) and regulations adopted under ORS 621.236. When the department is so satisfied, control of the weighing, sampling and testing shall be returned to the distributor, producer-distributor or licensee.

SECTION 39. ORS 621.266 is amended to read:

621.266. (1) Application for a pasteurizer operator license shall be made to the State Department of Agriculture on forms provided by [it] the department. [Any issuance or renewal of] A license issued or renewed by the department under this section may be restricted [in application to the person licensed] so as to authorize the [holder] licensee to engage only in a limited line of activity commensurate with the [holder's] ability of the licensee.

(2) [Each] An applicant for original issuance of a license [after July 1, 1991, shall be required to] must pass a reasonable written examination, give a practical demonstration of ability [of the applicant] to carry out [the] licensee duties [required under the license] and pay the fee required by this section.

(3) [Each] A license issued under this section [after July 1, 1991,] expires on June 30 of each even-numbered year next following the date of its issuance unless sooner revoked[,] and may be renewed upon application of the licensee. Each application for issuance or renewal of a license [or renewal thereof] shall be accompanied by a [license] nonrefundable fee determined by the department. [The fee shall not be refunded for any reason.]

(4) The fee [for a pasteurizer operator license] described in subsection (3) of this section shall be established by the department in accordance with ORS 183.310 to 183.550[,] and shall [be not more than] not exceed $50. [In establishing the amount of the fee, the department shall consider, among other things, the number of licensees, the difference in activities and the cost of administration and enforcement of ORS 621.151 to 621.291.]

(5) [Nothing in this section affects the validity of] Subsections (1) to (3) of this section do not apply to a pasteurizer operator license issued as a lifetime license prior to September 29, 1991. However, in order to maintain [such] a lifetime license in effect, the [holder thereof shall] licensee must submit a registration form to the department[,] by June 30 of each even-numbered year[, a registration form prescribed by the department] confirming the desire of the licensee [for continuation of] to continue the lifetime license.

SECTION 40. ORS 621.276 is amended to read:

621.276. (1) When any amendment is made in the laws of this state or new regulations are promulgated relating to a change in the grades of milk or the operation of pasteurizing equipment, the State Department of Agriculture may require any person licensed by the department to demonstrate knowledge and familiarity with [such] the amendments or changes and ability to comply with them.

(2) Any person who becomes subject to the provisions of this section has not less than 30 nor more than 60 days to meet [such] the additional requirements. If, at the expiration of 60 days, the person licensed has not demonstrated knowledge and ability in respect to [such] the additional requirements, the applicable license [to grade milk] shall be suspended automatically.

SECTION 41. ORS 621.281 is amended to read:

621.281. If [any] a person licensed under ORS 621.266 [fails, neglects or refuses to] does not fully and faithfully comply with [any] all provisions of ORS [621.151 to 621.291 required of persons so licensed] 621.266, 621.276 or 621.286 or standards and regulations adopted under ORS 621.181 and 621.261, the license of the person may be revoked, [or] suspended[,] or [otherwise] limited.

SECTION 42. ORS 621.286 is amended to read:

621.286. (1) [No] A person shall not operate or permit the operation of any pasteurization equipment except under the direct personal supervision of a person licensed as a pasteurizer operator under ORS 621.266.

(2) [No] A distributor, producer-distributor or dairy products plant licensee shall not sell, offer or expose for sale any milk or cream [which] that [has not been pasteurized or] was not produced by a disease-free herd or has not been pasteurized, except to another distributor, producer-distributor or dairy products plant licensee for the manufacture of milk, fluid milk or dairy products.

(3) [No] Except as permitted by ORS 621.060, 621.089 and 621.115 and section 2 of this 1999 Act, a person shall not knowingly sell, offer or expose for sale any milk or cream [which] that [has not been pasteurized or] was not produced by a disease-free herd or has not been pasteurized, except to a distributor, producer-distributor or dairy products plant licensee for the manufacture of milk, fluid milk or dairy products.

(4) [No] A distributor, producer-distributor or dairy products plant licensee shall not sell, offer or expose for sale any milk, fluid milk or dairy product processed or manufactured by the distributor, producer-distributor or licensee unless all of the milk or cream constituents [have been pasteurized and] were produced by a disease-free herd and have been pasteurized.

(5) [No] A person shall not knowingly sell, offer or expose for sale any dairy product unless all of the milk or cream constituents of [such] the product [have been pasteurized and] were produced by a disease-free herd and have been pasteurized.

(6) Excepting cottage cheese and any cheese required to be pasteurized by rule of the State Department of Agriculture, the pasteurization requirement of subsections (4) and (5) of this section shall not apply to cheese [which] that has been aged for at least 60 days from the date of manufacture[, which]. The manufacture date must appear on the cheese or its container.

(7) [No] A person shall not falsely represent by word, design, device[,] or by any other means that any milk, cream, fluid milk, [or] dairy product, frozen dessert mix or frozen dessert has been pasteurized.

(8) [No] A distributor, producer-distributor or dairy products plant licensee [shall fail, neglect or refuse to] must provide for the grading of all milk [and cream] transported, received or purchased by the distributor, producer-distributor or licensee as required by ORS [621.151 to 621.291] 621.084, 621.206, 621.216 and 621.226 and regulations adopted under ORS 621.236.

(9) [No] A person shall not alter, remove or tamper with any condemnation tag affixed by the State Department of Agriculture or a grader pursuant to the provisions of ORS 621.226 or 621.661.

(10) [No] A distributor, producer-distributor or dairy products plant licensee or grader shall not:

(a) Negligently sample, weigh or test any milk or cream.

(b) Fraudulently manipulate any weight, sample or test of milk or cream.

SECTION 43. ORS 621.297 is amended to read:

621.297. (1) The chief laboratory officer of the State Department of Agriculture may certify milk and dairy industry laboratories or other commercial laboratories capable of analyzing milk and dairy products[, may be certified by the State Department of Agriculture] to perform[, by officially recognized methods, certain] specified analyses of milk and dairy products. Certification shall be [made by the department's chief laboratory officer and shall be] for those tests, [and] analyses and methods specified [in ORS 621.055 to 621.120 or regulations thereunder,] by the department and may be limited by the department to [a] one or more specific [test, to a specific method, and to specific] tests, methods or products.

(2) [Each] On or before July 1 of each year, a laboratory certified [by the department pursuant to] under subsection (1) of this section[,] shall pay [to the department on or before July 1 of each year it is certified,] a fee established by the department not [to exceed] exceeding $100. [to assist in payment of the cost of inspection of certified laboratories by the department. The department shall establish by regulation the amount of such fee due under this subsection considering its costs of inspection and other relevant expenses.]

SECTION 44. ORS 621.311 is amended to read:

621.311. [(1)] As authorized by ORS 616.230 and 632.900 to 632.935, the State Department of Agriculture shall, by rule, establish definitions and standards of identity for frozen desserts [including ice cream, ice milk, sherbet, dietetic or dietary frozen desserts, mellorine, water ice, milk shake base and nondairy frozen dessert].

[(2) In addition to other guideposts and standards, the department in establishing definitions and standards for frozen desserts shall take into consideration the following:]

[(a) List of ingredients.]

[(b) Percentage of butterfat.]

[(c) Percentage of animal fat or vegetable fat content of mellorine.]

[(d) Percentage of total milk solids content.]

[(e) Percentage of total food solids content.]

[(f) Weight per gallon.]

[(g) Flavor and color labeling.]

SECTION 45. ORS 621.320 is amended to read:

621.320. (1) Frozen desserts sold in package form or final delivery containers shall be labeled [with:] as required by rule of the State Department of Agriculture. Except as provided under subsection (2) of this section, to the extent that the department considers practicable and applicable in this state, the labeling requirements adopted by rule of the department shall conform to the labeling requirements prescribed under 21 C.F.R. part 101. The department labeling requirements may be changed from time to time as the department considers desirable to conform with alterations or amendments to federal labeling requirements.

[(a) The name and place of business of the manufacturer, packer or distributor.]

[(b) The size of the container in terms of pints, quarts or gallons.]

[(c) The number of international units (I.U.) of vitamin "A" contained in the frozen dessert, when such dessert has been artificially enriched by the addition of vitamin "A."]

(2) Packages and final delivery containers of frozen desserts [identified and standardized in ORS 621.311, which] that are filled in the presence of the purchaser at retail [shall be exempted] are exempt from the labeling requirements of this section if a sign in boldfaced type not less than three-eighths of an inch high is displayed in plain view of the purchaser [containing] and contains all the information otherwise required [by that section] to be on the label.

[(3) Except as otherwise provided in this section, the provisions of the Federal Fair Packaging and Labeling Act, 15 U.S.C. subsections 1451 et seq., shall apply to frozen desserts.]

SECTION 45a. ORS 621.335 is amended to read:

621.335. (1) A person engaged in the business of [both] freezing [and selling] or making frozen desserts[, either] and then selling those frozen desserts at wholesale [or retail, shall] must obtain a license to carry on that business from the State Department of Agriculture [to carry on such business] as provided in this section. The person must obtain a separate license [shall be obtained] for each wholesale [or retail] establishment operated by [such] the person.

(2) Upon payment to the department of a license fee of $60, the department may issue a license to any applicant to make or freeze frozen desserts and then sell those frozen desserts [shall be issued by the department to any applicant upon payment to the department of the proper license fee which shall be computed as follows:] at wholesale.

[(a) A person engaged in the business of freezing and selling frozen desserts at wholesale or both at wholesale and retail, shall pay a license fee of $60.]

[(b) A person engaged in the business of freezing and selling frozen desserts at retail only, shall pay a license fee of $40.]

(3) The license shall expire on June 30 next following the date of its issuance unless sooner revoked or suspended. A license is personal to the applicant and is not transferable.

SECTION 46. ORS 621.340 is amended to read:

621.340. [No person shall sell or offer for sale at retail a frozen dessert which has a bacteria count in excess of 75,000 per gram. No] A frozen dessert wholesaler shall not sell, offer for sale or [have in his possession] possess with intent to sell a frozen dessert or frozen dessert mix [to a retailer thereof which] that has [a] an excessive bacteria count [in excess of 50,000 per gram] as established by rule of the State Department of Agriculture. Frozen desserts in which cultured milk is an ingredient shall not be required to meet any [minimum] bacteria count standards.

SECTION 47. ORS 621.345 is amended to read:

621.345. [No] A person shall not sell or offer for sale any product [representing it] that the person represents to be a frozen dessert or that simulates or imitates the taste, texture or general composition of a frozen dessert unless the product conforms to the standard of identity for [such product] that frozen dessert established by rule of the State Department of Agriculture pursuant to ORS 621.311.

SECTION 48. ORS 621.368 is amended to read:

621.368. The State Department of Agriculture may revoke a license issued pursuant to ORS [621.305 to 621.369] 621.335 for a violation of ORS [621.305 to 621.369] 621.340 or 621.345 by the licensee.

SECTION 49. ORS 621.369 is amended to read:

621.369. In any proceeding instituted for a violation of ORS [621.305 to 621.369] 621.340 in which possession with intent to sell a frozen dessert or frozen dessert mix is an issue, possession by the accused of [such] frozen dessert or frozen dessert mix in containers of the size and type commonly used by the accused in selling [such] that product shall be prima facie evidence of intent to sell.

SECTION 50. ORS 621.405 is amended to read:

621.405. (1) [No] A person shall [within this state] not manufacture for sale, [have in the possession of the person] possess with the intent to sell, offer or expose for sale[,] or sell any condensed or evaporated milk unless it conforms to the definitions and standards established by the State Department of Agriculture pursuant to subsection (2) of this section.

(2) The department shall establish definitions and standards of identity, quality and fill of container for condensed and evaporated milk. In establishing [such] the definitions and standards the department shall take into consideration:

(a) [Such] Definitions and standards [as] established in other states; and

(b) [Such] Definitions and standards [as] established by the Federal Government under the authority of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 301, et seq., as amended.

SECTION 51. ORS 621.410 is amended to read:

621.410. (1) [No] A person shall not manufacture for sale, or sell or exchange, or expose or offer for sale or exchange, any condensed or evaporated milk, or any substance containing any milk or milk products and designed or intended to be used or capable of being used for or as a substitute for condensed or evaporated milk, [unless] if the milk used in the manufacture thereof is [pure, clean, fresh, healthful, unadulterated and wholesome milk] unlawful as defined under ORS 621.226.

(2) [No] A person shall not manufacture for sale, or sell or expose, or offer for sale or exchange, any condensed or evaporated milk containing any vegetable fat.

SECTION 52. ORS 621.418 is amended to read:

621.418. (1) The State Department of Agriculture shall establish official state standards of quality and identity for imitation milk products in the manner prescribed in ORS 632.900 to 632.935.

(2) In establishing standards of quality and identity for imitation milk products, the department shall consider, in addition to other factors:

(a) The composition and purity of the product ingredients;

(b) The nutritional value of the fats, nonfat solids, vitamins, minerals or other ingredients affecting the food value of the product;

(c) The degree of sanitation maintained for buildings, equipment and personnel involved in the production, processing and distribution of the product.

(3) [No] A person shall not sell or offer for sale [any] an imitation milk product [which] that does not conform to a standard of quality and identity established by the department.

SECTION 53. ORS 621.435 is amended to read:

621.435. (1) [No] A person engaged in [the business, in whole or in part, of] manufacturing, selling, offering for sale, advertising or otherwise dealing in [or with] any product used or intended [or designed to be used] for use as a substitute for or imitation of [milk, butter, cheese or any other pure dairy or milk] a dairy product or fluid milk[,] shall not use [as] a [part of the] trade or corporate name [of the person, or as a] or product name, [or] description, [of the product, or use in or on the labels, packages, containers or] label, package, container, advertising matter or sales literature [thereto relating, any of the following names:] employing the terms "milk," "butter," "cream," "creamery," "churn," "cheese," "cow" or "dairy[,]" except [as used] in connection with imitation milk products.

(2) [No such] A person [shall] described in subsection (1) of this section shall not use any pictorial or other representations resembling [any of the objects named in subsection (1) of this section] a dairy product or fluid milk in or on the labels, packages, containers, advertising matter or literature [referred to] of a substitute or imitation product described in subsection (1) of this section [or any of the objects named in subsection (1) of this section in such a manner as to imply] in a manner suggesting that the product is made of milk [as defined herein].

(3) This section [shall] does not [be construed to] forbid a true statement [of or] concerning the ingredients or composition of a product [or of the contents of a package or container, when] if the statement is not misleading or in any way deceptive[, or to forbid or caution against the use of such product].

(4) Subsections (1) and (2) of this section [does] do not apply to products manufactured in this state for the purpose of shipping out of the state and not offered for sale in this state.

SECTION 54. ORS 621.445 is amended to read:

621.445. (1) In any public eating place serving meals for compensation at which a butter substitute colored to imitate butter is served, the owner or manager shall[:]

[(a)] cause the butter substitute to be served:

(a) In triangular pats or triangular bricks [only.]; or

[(b) Post in a prominent place on the interior wall of the eating place a notice in bold letters not smaller than three inches high by two inches wide containing the words: "Butter substitute served here."]

[(c) Plainly type or print the same words on each menu furnished the patrons.]

(b) On a parchment paper that is clearly marked or labeled with the words "margarine" or "butter substitute."

(2) The administration and enforcement of this section is vested in the State Department of Agriculture.

SECTION 55. ORS 621.661 is amended to read:

621.661. (1) The State Department of Agriculture shall condemn any container [which] that it finds [is] unfit for use [as such] by reason of dirt, rust, open seams or any other condition [which would or] that may contaminate fluid milk, milk or dairy products or otherwise render them unfit for human use or consumption. The department shall provide by [appropriate] rule [for] the method of plainly identifying condemned containers, which shall include affixing a tag to, or marking on, the container a notice of the fact of condemnation and a brief statement of the reasons therefor.

(2) It shall be conclusively presumed that any fluid milk, milk or dairy product in a container [which] that has been condemned by the department and [which] that bears a condemnation tag or marking is unfit for human consumption. The department shall condemn such fluid milk, milk or dairy product. The condemnation shall be carried out by thoroughly mixing [with the contents of the container] a harmless red coloring matter prescribed by the department with the contents of the container. The department may authorize licensed pasteurizer operators and graders to make the condemnation.

(3) If the container can be repaired, or the reason for the condemnation otherwise removed, the condemnation of the container may be lifted by the department. The department may authorize licensed pasteurizer operators and graders to lift the condemnation of a container when appropriate repairs have been made or the reason for the condemnation has been otherwise removed.

SECTION 56. ORS 621.666 is amended to read:

621.666. (1) [No] A person [except] other than an authorized employee or agent of the State Department of Agriculture shall not remove [any] a condemnation tag or marking from a container.

(2) [No] A person shall not place any fluid milk, cream, milk or dairy product in [any] a container bearing a condemnation tag or marking.

(3) [No] A person shall not use the contents of [any] a container [which] that has been condemned [in the] to manufacture, [processing or bottling of any] process or bottle fluid milk, cream, milk or dairy products.

SECTION 57. ORS 621.720 is amended to read:

621.720. The State Department of Agriculture shall establish and maintain procedures, systems and plans to carry out and enforce the intent and purposes of ORS [621.720 to 621.754] 621.730, 621.740 and 621.750. The department shall make [available to producers and other persons engaged in the milk industry,] department laboratory facilities, equipment, materials and services [to provide] available to producers and other persons engaged in the milk industry for the official testing, retesting or duplicate testing of milk for [its] milk fat content by means of [the method known to the industry as] the "Babcock Test" or any equally accurate and efficient test approved by the department.

SECTION 58. ORS 621.730 is amended to read:

621.730. (1) Within the availability of funds to be collected under ORS [621.720 to 621.754] 621.740, the State Department of Agriculture shall maintain laboratory facilities and purchase necessary equipment and materials to carry out this section and ORS [621.720 to 621.754] 621.720, 621.740 and 621.750.

(2) Any producer or other person engaged in the milk industry is authorized to request the department to provide and furnish official testing, retesting or duplicate testing of milk.

(3) [No] A milk handler, dealer, licensee or purchaser of milk shall not terminate or threaten to terminate the purchase of milk from a producer or seller, or take or threaten to take other retaliatory action against a producer or seller of milk, because [such] the producer or seller has exercised rights and privileges as authorized in this section. In addition to any action the department is authorized to take against any person taking [such] retaliatory steps or procedures, the producer or seller of milk may also maintain an action for damages against the same person. The prevailing party in [such] the action shall be entitled to reasonable attorney fees at trial and on appeal.

(4) The department [shall] may establish reasonable fees for enforcing and carrying out this section and ORS [621.720 to 621.754] 621.720, 621.740 and 621.750, in [such] amounts [as are] necessary to reimburse [it] the department for the furnishing of services and materials as required thereunder.

SECTION 59. ORS 621.740 is amended to read:

621.740. (1) The producer or person requesting official testing and related testing services from the State Department of Agriculture, as authorized under ORS [621.720 to 621.754, is responsible for and] 621.730 and 621.750 shall pay the fees established [thereunder to the department under the rules established by the department] under ORS 621.730 as provided by rule of the department.

(2) If the producer or person requesting [such] the services is selling milk to a first handler as defined and prescribed in ORS chapter 583, or to a distributor, producer-distributor or dairy products plant licensee [under ORS 621.151 to 621.291], the department may forward an itemized statement for services rendered[,] to the person requesting the services and also to the first handler, distributor, producer-distributor or licensee. The first handler, distributor, producer-distributor or licensee shall pay the itemized amount to the department and shall deduct [such] that amount from the amount paid to the producer or other person selling milk in the same manner and under the same procedures as set forth in ORS 583.046. Any first handler, distributor, producer-distributor or licensee who refuses to [withhold and pay the amount to the department] make the deduction[,] shall pay [such] the itemized amount to the department.

(3) [Nothing in] Subsection (2) of this section [shall be construed as relieving] does not relieve the producer or person requesting the services from being primarily responsible for payment to the department. The department[, notwithstanding this section,] may take all actions necessary to collect the amount due against the producer or person requesting the services.

SECTION 60. ORS 621.750 is amended to read:

621.750. [(1) In establishing and maintaining the procedures, systems or plans to carry out the official testing and related testing services to be furnished to all segments of the milk industry, after public hearing and under the provisions of ORS 183.310 to 183.550,] The State Department of Agriculture shall promulgate rules [relating thereto] including but not limited to the following:

[(a)] (1) Any producer may request the department to make an official milk fat content test of the milk the producer is selling to a dealer, milk handler or purchaser of milk. Official sample test periods used by the department shall correspond to the testing periods used by the dealer, handler[, licensee] or purchaser. At the time [samples of the producer's milk for the testing period involved are taken by the licensed sampler for such dealer, handler or purchaser of milk under this chapter,] that the grader samples the milk, each sample shall be split. One portion of the split sample shall be placed in a separate container furnished and approved by the department. The container shall be sealed as required by the department and signed or initialed by both the producer and the [licensed sampler of the purchaser] grader. The split sample shall be forwarded by the dealer, handler or purchaser to the department at the [producer's] expense of the producer and as prescribed by [under] rules of the department [prescribed relating thereto]. The department shall combine the samples for the period involved and make the official test requested of the composite group of samples. The department shall forward a copy of the test to the producer and a copy shall be mailed to the dealer, handler or purchaser [of milk as of the time and date prescribed by the department] submitting the sample. If the test performed and carried out by the department varies by more than one-tenth of one percent from the test made by the dealer, handler or purchaser,[ such dealer, handler or purchaser] within the time prescribed by the department the dealer, handler or purchaser shall adjust and make proper payments to the producer based upon the official tests made by the department.

[(b)] (2) The department shall [prescribe for] allow similar official testing for milk fat to be made available to any other person subject to this chapter and ORS chapter 583[, including the seller or purchaser of milk, as prescribed by the department].

[(2) It is recognized that the provisions of this section are only guideposts and standards for department use. The department shall provide the materials and services necessary to give all segments of the milk industry the facilities and services necessary to carry out the intent and purpose of ORS 621.720 to 621.754, at a reasonable cost].

SECTION 61. ORS 621.005, 621.055, 621.085, 621.090, 621.095, 621.100, 621.102, 621.119, 621.151, 621.152, 621.156, 621.186, 621.211, 621.221, 621.231, 621.256, 621.291, 621.305, 621.315, 621.325, 621.330, 621.348, 621.350, 621.352, 621.355, 621.357, 621.360, 621.365, 621.367, 621.416, 621.420, 621.425, 621.429, 621.440, 621.656, 621.754 and 621.990 are repealed.

Approved by the Governor May 27, 1999

Filed in the office of Secretary of State May 27, 1999

Effective date October 23, 1999

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