The duty of administration
and enforcement of all regulatory legislation applying to:
(1) The production, processing and distribution of all food
products or commodities of agricultural origin shall, in addition to such
further legislation as shall specifically name the State Department of
Agriculture as the administering agency, be performed by the department
to the exclusion of any other department not so specifically named.
(2) The sanitation of establishments where food or drink is
consumed on the premises where sold, or to sanitary practices used in
such establishments, shall be performed by the Department of Human
Services. [Amended by 1983 c.740 §230]In order to more effectively utilize the
agencies of the state in the public interest and without unnecessary
duplication and expense, the relationship between the production,
processing and distribution of food and the public health hereby is
recognized. Therefore there shall be the fullest cooperation between the
Department of Human Services and the State Department of Agriculture. (1) In addition to
any Department of Human Services survey, investigation or inquiry
authorized by law that involves the production, processing or
distribution of agricultural products, the Department of Human Services
shall make such further surveys, investigations or inquiries as may be
requested by the Director of Agriculture for the purpose of showing the
manner in which the production, processing or distribution of
agricultural products may affect the public health.
(2) In order that maximum protection to the public health may
result from the activities of the Department of Human Services and the
State Department of Agriculture, the Department of Human Services shall
notify the Director of Agriculture in writing of any contemplated survey
that affects or may affect agricultural products that are under the
regulation of the State Department of Agriculture. The notice shall cover
in detail the scope of the survey under consideration, and the reasons
therefor. However, this section shall not be construed as prohibiting the
Department of Human Services from taking immediate action in any case
where such action seems necessary in the interests of public health. The
written notice is not required in the case of a survey instituted on the
request of the Director of Agriculture.
(3) Not less than 30 days after the completion of any such survey,
the Department of Human Services shall file with the Director of
Agriculture a certified copy of its report. The report shall include the
findings of the Department of Human Services with respect to all matters
covered thereby. Whenever the findings in the report of any survey,
investigation or inquiry made by the Department of Human Services show
any hazard to public health existing incident to the production,
processing or distribution of any agricultural commodity, the State
Department of Agriculture shall take such action as may be necessary and
within the scope of its resources to remove such hazards. [Amended by
2001 c.900 §208; 2003 c.14 §362] The
certificate of analysis or test of any chemist, or other authorized
officer, employee or deputy of the State Department of Agriculture,
signed and certified to by that person, is prima facie evidence in all
courts of justice of the matters and facts certified to therein.REGULATION OF SULFITE USE (1) The
Legislative Assembly finds that sulfites used as an additive in fresh
foods and foods to be consumed without cooking may have already caused
the death of one Oregonian and may pose a threat to the health of
thousands of Oregonians.
(2) The Legislative Assembly further finds that the presence of
sulfites in fresh foods and foods to be consumed without cooking is not
readily detectable by consumers of the food.
(3) It is therefore the policy of the State of Oregon to protect
its citizens from the adverse effects of sulfites by:
(a) Prohibiting the use of sulfites in fresh foods and foods to be
consumed without cooking by any restaurant licensed under ORS 624.010 to
624.120 and 624.310 to 624.430; and
(b) Encouraging the use of an alternative to sulfites in food
processing.
(4) Subsection (3) of this section shall not prohibit the use or
serving of grapes, to which sulfites have been applied in accordance with
the provisions of ORS chapters 616 and 634, in facilities licensed under
ORS 624.010 to 624.120 and 624.310 to 624.430. [1985 c.519 §1; 1993 c.246
§1] (1) The
Department of Human Services shall adopt any rules necessary to implement
the policy established in ORS 616.073.
(2) Rules adopted by the Department of Human Services under
subsection (1) of this section to implement the policy of the State of
Oregon to prohibit the use of sulfites in fresh foods and foods to be
consumed without cooking do not apply to a food processing establishment
licensed under ORS 616.695 to 616.755. [1985 c.519 §§2,3; 2003 c.309 §7]SALE OF ADULTERATED, MISBRANDED OR IMITATION FOODS As used in ORS
616.205 to 616.385, unless the context clearly indicates a different
meaning:
(1) “Advertisement” includes all representations disseminated in
any manner or by any means, other than by labeling, for the purpose of
inducing, or which are likely to induce, directly or indirectly, the
purchase of the food.
(2) “Color” includes black, white and intermediate grays.
(3)(a) “Color additive” means a material that:
(A) Is a dye, pigment, or other substance made by a process of
synthesis or similar artifice, or extracted, isolated, or otherwise
derived, with or without intermediate or final change of identity, from a
vegetable, animal, mineral, or other source; or
(B) When added or applied to a food or to the human body or any
part thereof, is capable, alone or through reaction with other substance,
of imparting color thereto.
(b) “Color additive” does not include any material that has been
exempted under the federal Act.
(c) Notwithstanding paragraph (a) of this subsection, “color
additive” does not include any pesticide chemical, soil or plant
nutrient, or other agricultural chemical solely because of its effect in
aiding, retarding or otherwise affecting, directly or indirectly, the
growth or other natural physiological process of produce of the soil and
thereby affecting its color, whether before or after harvest.
(4) “Consumer commodity” means any food as defined by ORS 616.205
to 616.215, 616.225 to 616.256, 616.286, 616.295, 616.310, 616.315,
616.325, 616.330, 616.341, 616.350 to 616.366, 616.790 and 616.992 or by
the federal Act.
(5) “Contaminated with filth” means the condition of any food not
securely protected from dust, dirt and, as far as may be necessary by all
reasonable means, from all foreign or injurious substances.
(6) “Director” means the Director of Agriculture.
(7) “Federal Act” means the Federal Food, Drug and Cosmetic Act, 21
U.S.C. 301 et seq., 52 Stat. 1040 et seq.
(8) “Food” means:
(a) Articles used for food or drink, including ice, for human
consumption or food for dogs and cats;
(b) Chewing gum; and
(c) Articles used for components of any such article.
(9) “Food additive” means any substance the intended use of which
results or may reasonably be expected to result, directly or indirectly,
in its becoming a component or otherwise affecting the characteristics of
any food, including any substance intended for use in producing,
manufacturing, packing, processing, preparing, treating, packaging,
transporting, or holding food, and including any source of radiation
intended for any such use, if such substance is not generally recognized,
among experts qualified by scientific training and experience to evaluate
its safety, as having been adequately shown through scientific procedures
or experience based on common use in food to be safe under the conditions
of its intended use. “Food additive” does not include:
(a) A pesticide chemical in or on a raw agricultural commodity;
(b) A pesticide chemical to the extent that it is intended for use,
or is used in the production, storage or transportation of any raw
agricultural commodity; or
(c) A color additive.
(10) “Food establishment” means:
(a) Any room, building, structure or place, used or intended for
use, or operated for storing, preparing, compounding, manufacturing,
processing, freezing, packaging, distributing, handling or displaying
food.
(b) The ground upon which such place or business is operated or
used and so much ground adjacent thereto as is also used in carrying on
the business of the establishment. The State Department of Agriculture
may prescribe such additional area or places which, although they may not
be contiguous or adjacent to the above area or establishment, may be
included therein.
(c) Vehicles, machinery, equipment, utensils, tools, fixtures,
implements and all other articles or items, used in operating or carrying
on the business of a food establishment.
(11) “Immediate container” does not include package liners.
(12) “Label” means a display of written, printed or graphic matter
upon the immediate container of any article. A requirement made under
authority of ORS 616.205 to 616.215, 616.225 to 616.256, 616.286,
616.295, 616.310, 616.315, 616.325, 616.330, 616.341, 616.350 to 616.366,
616.790 and 616.992 that any word, statement or other information appears
on a label has not been obeyed unless such word, statement or other
information also appears on the outside container or wrapper, if any
there be, of the retail package of such article or unless such word,
statement or information is easily legible through the outside container
or wrapper.
(13) “Labeling” means all labels and other written, printed or
graphic matters upon an article or any of its containers or wrappers, or
accompanying such article.
(14) “Package” means any container or wrapping in which any
consumer commodity is enclosed for use in the delivery or display of that
consumer commodity to retail purchasers, but does not include:
(a) Shipping containers or wrappings used solely for the
transportation of any consumer commodity in bulk or in quantity to
manufacturers, packers or processors, or to wholesale or retail
distributors thereof; or
(b) Shipping containers or outer wrappings used by retailers to
ship or deliver any commodity to retail customers if such containers and
wrappings bear no printed matter pertaining to any particular commodity.
(15) “Pesticide chemical” means any substance which, alone, in
chemical combination or in formulation with one or more other substances
is a “pesticide” as defined in ORS 634.006.
(16) “Principal display panel” means that part of a label that is
most likely to be displayed, presented, shown or examined under normal
and customary conditions of display for retail sale.
(17) “Raw agricultural commodity” means any food in its raw or
natural state, including all fruits that are washed, colored, or
otherwise treated in their unpeeled natural form prior to marketing.
[Amended by 1961 c.637 §1; 1973 c.227 §1; 1983 c.160 §2; 1983 c.740 §231;
1987 c.158 §120a; 2001 c.320 §2; 2003 c.14 §§363,364]The provisions of ORS 616.205
to 616.295 regarding the selling of food include the manufacture,
production, processing, packing, exposure, offer, possession and holding
of any such article for sale; and the sale, dispensing and giving of any
such article, and the supplying or applying of any such articles in the
conduct of any food establishment. [Amended by 1973 c.227 §2] The following acts and the causing thereof
within the State of Oregon are prohibited:
(1) The manufacture, sale or delivery, holding or offering for sale
of any food that is adulterated or misbranded.
(2) The adulteration or misbranding of any food.
(3) The receipt in commerce of any food that is adulterated or
misbranded, and the delivery or proffered delivery thereof for pay or
otherwise.
(4) The distribution in commerce of a consumer commodity if such
commodity is contained in a package, or if there is affixed to that
commodity a label, which does not conform to ORS 616.205 to 616.215,
616.225 to 616.256, 616.286, 616.295, 616.310, 616.315, 616.325, 616.330,
616.341, 616.350 to 616.366, 616.790 and 616.992 and of rules promulgated
pursuant thereto. However, this prohibition does not apply to persons
engaged in business as wholesale or retail distributors of consumer
commodities except to the extent that such persons:
(a) Are engaged in the packaging or labeling of such commodities; or
(b) Prescribe or specify by any means the manner in which such
commodities are packaged or labeled.
(5) The dissemination of any false advertisement.
(6) The refusal to permit entry or inspection, or to permit the
taking of a sample, or to permit access to or the copying of any record,
as authorized.
(7) The giving of a guaranty or undertaking which is false, except
by a person who relied on a guaranty or undertaking to the same effect
signed by, and containing the name and address of the person from whom
the person received in good faith the food.
(8) The removal or disposal of a detained or embargoed article in
violation of ORS 616.225.
(9) The alteration, mutilation, destruction, obliteration or
removal of the whole or any part of the labeling of, or the doing of any
other act with respect to a food, if such act is done while such article
is held for sale and results in such article being adulterated or
misbranded.
(10) Forging, counterfeiting, simulating or falsely representing,
or without proper authority using any mark, stamp, tag, label or other
identification device authorized or required by rules promulgated under
the provisions of ORS 616.205 to 616.295 and 616.305 to 616.315.
(11) The use by any person to the person’s own advantage, or
disclosure, other than to the Director of Agriculture or the authorized
representative of the director or to the courts when relevant in any
judicial proceeding under ORS 616.205 to 616.385, of any information
acquired under the authority of ORS 616.205 to 616.385 concerning any
method or process which is a trade secret entitled to protection.
[Amended by 1973 c.227 §3; 2001 c.320 §3]No person shall label or offer for sale any food fish product
designated as halibut, with or without additional descriptive words,
unless such food fish product is Hippoglossus hippoglossus or
Hippoglossus stenolepsis. [1967 c.413 §2] In addition
to the remedies provided by ORS 616.205 to 616.295, the State Department
of Agriculture or its authorized agents may apply to the circuit court
for, and such court shall have jurisdiction upon hearing and for cause
shown to grant, a temporary or permanent injunction restraining any
person from violating any provision of ORS 616.215, irrespective of
whether or not there exists an adequate remedy at law.(1) Whenever a duly authorized representative of
the State Department of Agriculture finds, or has probable cause to
believe, that any food or consumer commodity is adulterated, or so
misbranded as to be dangerous or fraudulent, within the meaning of ORS
616.205 to 616.295, the representative shall affix to such article a tag
or other appropriate marking, giving notice that such article is, or is
suspected of being adulterated or misbranded and has been detained,
embargoed or seized, and warning all persons not to remove or dispose of
such article by sale or otherwise until permission for removal or
disposal is given by an authorized representative of the department. No
person shall remove or dispose of such detained, embargoed or seized
article by sale or otherwise without permission of the department.
(2) Whenever the department or any of its authorized
representatives finds in any room, building, vehicle of transportation,
or other structure, any meat, fluid milk, dairy product, seafood,
poultry, vegetable, fruit or other perishable articles which are unsound,
or contain any filthy, decomposed or putrid substance, or that may be
poisonous or deleterious to health or otherwise unsafe, the same hereby
being declared a nuisance, the department or its authorized
representative forthwith shall condemn or destroy the same, or in any
other manner render it unsalable as human food.
(3) The department shall carry out the provisions of this section
as provided in ORS 561.605 to 561.630. [Amended by 1973 c.227 §4](1) The State Department of Agriculture, by rule,
shall establish definitions and standards of identity, quality and fill
of container for the State of Oregon. In carrying out the provisions of
this subsection, the department shall take into consideration definitions
and standards established in other states and definitions and standards
established pursuant to the federal Act.
(2) Whenever in the judgment of the department such action will
promote honesty and fair dealing in the interest of consumers, the
department shall promulgate rules establishing definitions and standards
of identity, quality and fill of container for foods for which no such
definitions or standards have been established under the federal Act. In
addition, the department may promulgate rules supplementing or amending
any rule under the federal Act which sets definitions and standards of
identity, quality and fill of container for foods.
(3) Temporary permits for interstate shipment of experimental packs
of food varying from the requirements of definitions and standards of
identity under the federal Act are effective in this state under the
conditions stated in such permits. In addition, the department may issue
additional permits when such permits are determined by the department to
be necessary to the completion or conclusiveness of an otherwise adequate
investigation and when the interests of consumers are safeguarded. Such
permits shall be subject to any terms and conditions the department may
prescribe. [Amended by 1973 c.227 §5; 1975 c.304 §5] A food shall be deemed to be
adulterated:
(1)(a) If it bears or contains any poisonous or deleterious
substance which may render it injurious to health. However, if the
substance is not an added substance such food shall not be considered
adulterated under this paragraph if the quantity of such substance in
such food does not ordinarily render it injurious to health.
(b) If it bears or contains any added poisonous or added
deleterious substance, other than a pesticide chemical in or on a raw
agricultural commodity and other than a food additive or color additive,
which is unsafe within the meaning of ORS 616.245, or it is a raw
agricultural commodity and it bears or contains a pesticide chemical
which is unsafe within the meaning of ORS 616.341 or if it is, bears or
contains any food additive which is declared unsafe by the State
Department of Agriculture under ORS 616.350. However, when a pesticide
chemical has been used in or on a raw agricultural commodity in
conformity with an exemption granted or tolerance prescribed under ORS
616.341, and such raw agricultural commodity has been subjected to
processing, such as canning, cooking, freezing, dehydrating or milling,
the residue of such pesticide chemical remaining in or on such processed
food, notwithstanding ORS 616.341 and this section are not unsafe if such
residue in or on the raw agricultural commodity has been removed to the
extent possible in good manufacturing practice, and the concentration of
such residue in the processed food when ready-to-eat, is not greater than
the tolerance prescribed for the raw agricultural commodity.
(c) If it consists in whole or in part of a diseased, contaminated,
filthy, putrid or decomposed substance, or if it is otherwise unfit for
food.
(d) If it has been produced, prepared, packed or held under
insanitary conditions whereby it may have become contaminated with filth,
or whereby it may have been rendered diseased, unwholesome or injurious
to health.
(e) If it is, in whole or in part, the product of a diseased animal
or an animal which has died otherwise than by slaughter, or that has been
fed upon the uncooked offal from a slaughterhouse.
(f) If its container is composed, in whole or in part, of any
poisonous or deleterious substance which may render the contents
injurious to health.
(2)(a) If any valuable constituent has been in whole or in part
omitted or abstracted therefrom;
(b) If any substance has been substituted wholly or in part
therefor;
(c) If damage or inferiority has been concealed in any manner; or
(d) If any substance has been added thereto or mixed or packed
therewith so as to increase its bulk or weight, or reduce its quality or
strength or make it appear better or of greater value than it is.
(3)(a) If it is confectionery and has partially or completely
imbedded therein any nonnutritive object. This paragraph does not apply
in the case of any nonnutritive object if, in the judgment of the
department, such object is of some practical functional value to the
confectionery product and would not render the product injurious or
hazardous to health.
(b) If it bears or contains any alcohol except alcohol not in
excess of one-half of one percent by weight used solely as a flavoring.
(c) If it bears or contains any nonnutritive substance. This
paragraph does not apply to a nonnutritive substance which is in or on
confectionery if, in the judgment of the department, its use is of some
practical functional value in the manufacture, packaging or storing of
such confectionery and if the use of such substance does not promote
deception of the consumer or otherwise result in adulteration or
misbranding in violation of any provision of ORS 616.205 to 616.215,
616.225 to 616.256, 616.286, 616.295, 616.310, 616.315, 616.325, 616.330,
616.341, 616.350 to 616.366, 616.790 and 616.992. The department, for the
purpose of avoiding uncertainty in the application of this subsection,
may promulgate rules allowing or prohibiting the use of particular
nonnutritive objects or substances.
(d) If it bears or contains any color additive which is determined
unsafe pursuant to ORS 616.350. [Amended by 1959 c.301 §1; 1961 c.637 §2;
1973 c.227 §6; 1983 c.304 §1] Any
poisonous or deleterious substance, other than a pesticide, added to any
food except when the substance is required in the production thereof or
cannot be avoided by good manufacturing practice shall be deemed to be
unsafe for purposes of the application of ORS 616.235 (1)(b). When the
substance is so required or cannot be so avoided, the State Department of
Agriculture shall adopt rules limiting the quantity of the substance to
the extent the department finds necessary for the protection of public
health, and any quantity exceeding the limits so fixed shall also be
deemed to be unsafe for purposes of the application of ORS 616.235
(1)(b). While such a rule is in effect limiting the quantity of any such
substance in the case of any food, the food is not, by reason of bearing
or containing any added amount of such substance, considered to be
adulterated within the meaning of ORS 616.235 (1)(a). In determining the
quantity of the added substance to be tolerated in or on different
articles of food, the department shall take into account the extent to
which the use of the substance is required or cannot be avoided in the
production of each article and the other ways in which the consumer may
be affected by the same or other poisonous or deleterious substances.
[Amended by 1973 c.227 §7; 2005 c.22 §412] A food shall be deemed to be
misbranded:
(1) If its labeling is false or misleading in any particular, or
fails to conform to ORS 616.325.
(2) If it is offered for sale under the name of another food.
(3) If it is an imitation of another food, unless its label bears
in type of uniform size and prominence the word “imitation” and,
immediately thereafter, the name of the food imitated.
(4) If its container is so made, formed or filled as to be
misleading.
(5) If in package form:
(a) Unless it bears a label containing:
(A) The name and place of business of the manufacturer, packer or
distributor; and
(B) An accurate statement of the net quantity of the contents in
terms of weight, measure, volume or numerical count. The statement shall
be separately and accurately stated upon the principal display panel of
the label.
(b) The same reasonable variations allowed in ORS chapter 618 shall
be permitted.
(c) Exemptions as to small packages shall be established by rules
promulgated by the State Department of Agriculture.
(6) If any word, statement or other information required by or
under authority of ORS 616.205 to 616.295 to appear on the label or
labeling is not prominently placed thereon with such conspicuousness, as
compared with other words, statements, designs or devices, in the
labeling, and in such terms as to render it likely to be read and
understood by the ordinary individual under customary conditions of
purchase and use.
(7) If it purports to be or is represented as a food for which a
definition and standard of identity has been prescribed by rule as
provided by ORS 616.230, unless it conforms to such definition and
standard and its label bears the name of the food specified in the
definition and standard, and, in so far as may be required by such rule,
the common names of optional ingredients, other than spices, flavoring
and coloring present in such food.
(8) If it purports to be or is represented as a food for which a
standard of quality has been prescribed by rule as provided by ORS
616.230 and its quality falls below the standards such rule specifies, a
statement that it falls below such standard.
(9) If it is a food for which a standard or standards of fill of
container have been prescribed by rule as provided by ORS 616.230, and it
falls below the standard of fill of container applicable thereto, unless
its label bears, in such manner and form as such rule specifies, a
statement that it falls below such standard.
(10) If it is not subject to the provisions of subsection (7) of
this section, unless its label bears:
(a) The common or usual name of the food, if any there be; and
(b) In case it is fabricated from two or more ingredients, the
common or usual name of each such ingredient.However, spices, flavorings and colorings, other than those sold as such,
may be designated as spices, flavorings and colorings, without naming
them. To the extent that compliance with the requirements of paragraph
(b) of this subsection is impractical or results in deception or unfair
competition, exemptions shall be established by rule promulgated by the
department.
(11) If it purports to be or is represented for special dietary
uses, unless its label bears such information concerning its vitamin,
mineral and other dietary properties as the department determines to be,
and by rule prescribed as, necessary in order to fully inform purchasers
as to its value for such uses.
(12) If it bears or contains any artificial flavoring, artificial
coloring or chemical preservative, unless it bears labeling stating that
fact. To the extent that compliance with the requirements of this
subsection is impracticable, exemptions shall be established by rule
promulgated by the department. This subsection and subsections (7) and
(10) of this section with respect to artificial coloring do not prohibit
the use of harmless coloring matter in butter, cheese or ice cream. The
provisions of this subsection with respect to chemical preservatives do
not apply to a pesticide chemical when used in or on a raw agricultural
commodity which is the product of the soil.
(13) If it is a raw agricultural commodity which is the product of
the soil, bearing or containing a pesticide chemical applied after
harvest, unless the shipping container of such commodity bears labeling
which declares the presence of such chemical in or on such commodity and
the common or usual name and the function of such chemical. However, no
such declaration is required while such commodity, having been removed
from the shipping container, is being held or displayed for sale at
retail out of such container in accordance with the custom of the trade.
(14) If following the labeled directions or instructions on the
product in using it as a food ingredient will result in the final food
being adulterated or misbranded.
(15) If it is a color additive, unless its packaging and labeling
are in conformity with the packaging and labeling requirements applicable
to such color additive prescribed under the provisions of the federal Act.
(16) If it has been salvaged, unless it bears labeling or
notification stating that fact. For the purposes of this subsection,
“salvaged” means the reconditioning, repacking, relabeling, cleaning or
culling of foods that have been damaged or adulterated as a result of
fire, storm, flood, water, smoke, chemicals, radiation or commercial
transit accident. [Amended by 1953 c.267 §2; 1973 c.227 §8; 1973 c.563
§1; 1983 c.740 §232; 1989 c.1025 §9; 2001 c.320 §4] The
State Department of Agriculture may by rule exempt from any of the
labeling requirements of ORS 616.205 to 616.385, food which is, in
accordance with the practice of the trade, to be processed, labeled or
repacked in substantial quantities at establishments other than those
where originally processed or packed. Such exemptions shall be
conditioned upon the fact that such food is not adulterated or misbranded
under the provisions of ORS 616.205 to 616.385, upon the removal from
such processing, labeling or repacking establishment. [1973 c.227 §10
(enacted in lieu of 616.255); 2001 c.320 §5] An advertisement of a food
shall be deemed to be false if it is false or misleading in any
particular. If any
article is alleged to be misbranded because the labeling is misleading,
or if any advertisement is alleged to be false because it is misleading,
then in determining whether the labeling or advertisement is misleading,
there shall be taken into account, among other things, not only
representations made or suggested by statement, word, design, device,
sound or in any combination thereof, but also the extent to which the
labeling or advertisement fails to reveal facts material in the light of
such representations or material with respect to consequences which may
result from the use of the article to which the labeling or advertisement
relates under the conditions of use prescribed in the labeling or
advertisement thereof or under such conditions of use as are customary or
usual. No
publisher, radio broadcast licensee or agency or medium for the
dissemination of an advertisement, except the manufacturer, packer,
distributor or seller of the article to which a false advertisement
relates, is liable under this section by reason of the dissemination by
the publisher, licensee or agency or medium of such false advertisement,
unless the publisher, licensee or agency or medium has refused, on the
request of the State Department of Agriculture, or its authorized
representative, to furnish the department the name and post-office
address of the manufacturer, packer, distributor, seller or advertising
agency who caused the publisher, licensee or agency or medium to
disseminate the advertisement. (1) For
purposes of enforcement of ORS 616.205 to 616.385, the State Department
of Agriculture or any of its authorized representatives are authorized
upon presentation of appropriate credentials to the owner, operator or
agent in charge:
(a) To enter at reasonable times any food establishment or
warehouse in which food is being held for introduction into commerce or
vehicle being used to transport, hold or introduce such food in commerce.
(b) To inspect at reasonable times and within reasonable limits
such food establishment, warehouse or vehicle and all pertinent
equipment, finished and unfinished materials, containers and labeling
therein, and to obtain samples necessary to the enforcement of ORS
616.205 to 616.385.
(c) To have access to and to copy all records of carriers in
commerce showing the movement in commerce of any food or the holding
thereof during or after such movement, and the quantity, shipper and
consignee thereof. Evidence obtained under the authority of this
paragraph may not be used in a criminal prosecution of the person from
whom obtained and carriers are not subject to other provisions of ORS
616.205 to 616.385 by reason of their receipt, carriage, holding or
delivery of food in the usual course of business as carriers.
(d) To enter at reasonable times any retail food establishment
holding a valid liquor license to insure that the retail establishment
properly posts the sign required by ORS 471.551.
(2) Upon completion of any inspection of a food establishment,
warehouse or vehicle, and prior to leaving the premises, the authorized
representative of the department making the inspection shall furnish to
the owner, operator or agent in charge a written report setting forth any
conditions or practices observed by such representatives which in the
judgment of the representative indicate that any food in such
establishment, warehouse or vehicle:
(a) Consists in whole or in part of any filthy, putrid or
decomposed substance; or
(b) Has been prepared, packed or held, in whole or in part, under
insanitary conditions whereby it may have become contaminated with filth
or whereby it may have been rendered injurious to health.
(3) If the authorized representative of the department making any
inspection of a food establishment, warehouse or vehicle has obtained
samples in the course of such inspection, upon completion of the
inspection and prior to leaving the premises, the representative shall
furnish to the owner, operator or agent in charge a receipt describing
the samples obtained, and shall tender or offer payment therefor.
(4) If samples are obtained as provided in subsection (3) of this
section, and analyses are made of such samples for the purpose of
ascertaining whether such food consists in whole or in part of any
filthy, putrid or decomposed substance or is otherwise unfit for food, a
copy of the results of such analyses shall be furnished by the department
to the owner, operator or agent in charge. [1973 c.227 §12 (enacted in
lieu of 616.285); 1991 c.324 §7; 2001 c.320 §6] (1) The
State Department of Agriculture may cause to be published from time to
time reports summarizing all judgments and court orders which have been
rendered under ORS 616.205 to 616.295, 616.305 to 616.315, and 616.992,
including the nature of the charge and the disposition thereof.
(2) The department also may cause to be disseminated such
information regarding food as the department deems necessary in the
interest of public health and the protection of the consumer against
fraud.
(3) Nothing in this section shall be construed to prohibit the
department from collecting, reporting and illustrating the results of its
investigations. [Amended by 1973 c.227 §13; 2003 c.576 §525] The district
attorney of each county to whom the State Department of Agriculture or
its authorized representative reports any violation of ORS 616.205 to
616.295 or 616.305 to 616.315 shall cause appropriate proceedings to be
instituted in the proper courts without delay and to be prosecuted in the
manner required by law. Nothing in ORS
616.205 to 616.295, 616.305 to 616.315 and 616.992 shall be construed as
requiring the State Department of Agriculture to report for the
institution of proceedings under those sections minor violations of those
sections whenever the department believes that the public interest will
be served adequately in the circumstances by a suitable written notice or
warning. [Amended by 1973 c.227 §14] Justice courts have concurrent
jurisdiction with the circuit courts for the enforcing of the provisions
of ORS 616.205 to 616.295, 616.305 to 616.315 and 616.992. [Amended by
1973 c.227 §15]ORS 616.205 to 616.385 may be cited as the
Oregon Food Law. [Amended by 2001 c.320 §7](1) All labels of consumer commodities shall conform to such
requirements for the declaration of net quantity of contents as the State
Department of Agriculture by rule may prescribe. In carrying out the
provisions of this subsection, the department shall consider the
requirements and exemptions provided in the federal Fair Packaging and
Labeling Act, 15 U.S.C. 1451, et seq., as amended, and the rules
promulgated pursuant thereto.
(2) The label of any package of a consumer commodity which bears a
representation as to the number of servings of such commodity contained
in such package shall bear a statement of the net quantity, in terms of
weight, measure or numerical count, of each such serving.
(3) No person shall distribute or cause to be distributed in
commerce any packaged consumer commodity if any qualifying words or
phrases appear in conjunction with the separate statement of the net
quantity of contents required by subsection (1) of this section, but
nothing in this subsection prohibits supplemental statements, at other
places on the package, describing in nondeceptive terms the net quantity
of contents. Such supplemental statements of net quantity of contents
shall not include any term qualifying a unit of weight, measure or count
that tends to exaggerate the amount of the commodity contained in the
package.
(4) Whenever the department determines that rules containing
prohibitions or requirements other than those prescribed by subsection
(1) of this section are necessary to prevent the deception of consumers
or to facilitate value comparisons as to any consumer commodity, the
department shall promulgate rules with respect to that commodity which:
(a) Establish and define standards for the characterization of the
size of a package enclosing any consumer commodity, which may be used to
supplement the label statement of net quantity of contents of packages
containing such commodity. This paragraph shall not be construed as
authorizing any limitation on the size, shape, weight, dimensions or
number of packages which may be used to enclose any commodity;
(b) Regulate the placement upon any package containing any consumer
commodity or upon any label affixed to such commodity, of any printed
matter stating or representing by implication that such commodity is
offered for retail sale at a price lower than the ordinary and customary
retail sale or that a retail sale price advantage is accorded to
purchasers thereof by reason of the size of that package or the quantity
of its contents;
(c) Require that the label on each package of a consumer commodity
bear the common or usual name of such consumer commodity, if any, and in
case such consumer commodity consists of two or more ingredients, the
common or usual name of each such ingredient listed in order of
decreasing predominance. However, nothing in this paragraph requires that
any trade secret be divulged; or
(d) Prevent the nonfunctional slack-fill of packages containing
consumer commodities.
(5) For the purposes of subsection (4)(d) of this section, a
package is nonfunctionally slack-filled if it is filled to substantially
less than its capacity for reasons other than protection of the contents
of such package or the requirements of machines used for enclosing the
contents in such package. The department may adopt any rules promulgated
by the federal government pursuant to the federal Fair Packaging and
Labeling Act, 15 U.S.C. 1451, et seq. [1973 c.227 §24; 1975 c.304 §15]ORS 616.205 to 616.215,
616.225 to 616.256, 616.286, 616.295, 616.310, 616.315, 616.325, 616.341,
616.350 to 616.366, 616.790, 616.992, rules adopted by the Department of
Human Services under ORS 616.077 (1) and this section do not apply to
alcoholic beverages. [1973 c.227 §25a; 1985 c.519 §4]Note: 616.330 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 616 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1) A retail or
wholesale food distributor shall place a warning label on food containing
diethylstilbestrol.
(2) The label shall state:
___________________________________________________________________________
___WARNING: This product contains diethylstilbestrol (DES), a synthetic
hormone. Studies associate consumption of DES with vaginal cancer and
male genital abnormalities.
___________________________________________________________________________
___
(3) As used in this section, “food” means fruits, vegetables,
meats, poultry, eggs, dairy products and other natural and processed
products offered for sale for human or animal consumption. [1979 c.268 §4]PESTICIDE CHEMICALS AND FOOD ADDITIVES As used
in ORS 616.205 and 616.335 to 616.385, “experts qualified by scientific
training and experience to evaluate the safety of food additives” or
similar phrases mean individuals with sufficient training and experience
in biology, medicine, pharmacology, physiology, toxicology, veterinary
medicine or other appropriate sciences to recognize and properly evaluate
the behavior and effects of chemical substances upon the body of humans
or animals when such substances are taken into the body as food
additives. [1961 c.637 §14]
Any added poisonous or deleterious substance, any food additive, any
pesticide chemical in or on a raw agricultural commodity or any color
additive, with respect to any particular use or intended use, shall be
considered unsafe for the purpose of application of ORS 616.235 unless
there is in effect a rule promulgated pursuant to ORS 616.366 limiting
the quantity of such substance, and the use or intended use of such
substance conforms to the terms prescribed by such rule. While such rule
relating to such substance is in effect, a food shall not, by reason of
bearing or containing such substance in accordance with the rule, be
considered adulterated within the meaning of ORS 616.235. [1973 c.227 §17
(enacted in lieu of 616.340)] (1) The State
Department of Agriculture shall promulgate regulations establishing
tolerances for pesticide chemicals or exempting them from the necessity
of a tolerance as provided by ORS 616.341 with respect to the presence in
or on raw agricultural commodities of poisonous or deleterious pesticide
chemicals and of pesticide chemicals which are not generally recognized,
among experts qualified by scientific training and experience to evaluate
the safety of pesticide chemicals, as safe for use, to the extent
necessary to protect the public health. In promulgating such regulations,
or regulations authorized by ORS 616.355, the department shall give
appropriate consideration to but not be limited by:
(a) The necessity for the production of an adequate wholesome and
economic food supply.
(b) The other ways in which the consumer may be affected by the
same pesticide chemical or by other related substances that are poisonous
or deleterious.
(c) The laws and regulations of the United States and other states.
(d) The opinions of recognized experts and governmental agencies in
the field of pesticide chemicals.
(2) The department shall promulgate regulations exempting any
pesticide chemical from the necessity of a tolerance with respect to use
in or on all raw agricultural commodities when such tolerance is not
necessary to protect the public health.
(3) Any person who has registered, or who has submitted an
application for the registration of, an economic poison or pesticide with
the department as required by law, may file with the department a
petition as authorized by ORS chapter 183, proposing the promulgation of
a regulation establishing a tolerance for a pesticide chemical which
constitutes, or is an ingredient of such economic poison or pesticide, or
exempting the pesticide chemical from the requirement of a tolerance. The
petition shall contain data showing:
(a) The name, chemical identity, and composition of the pesticide
chemical;
(b) The amount, frequency, and time of application of the pesticide
chemical;
(c) Full reports of investigations made with respect to the safety
of the pesticide chemical;
(d) The results of tests on the amount of residue remaining,
including a description of the analytical method used;
(e) Practicable methods of removing residue which exceeds any
proposed tolerance;
(f) Proposed tolerances for the pesticide chemical if tolerances
are proposed; and
(g) Reasonable grounds in support of the petition. Samples of the
pesticide chemical shall be furnished to the department upon request.
[1961 c.637 §5; 1975 c.304 §16] The State Department of
Agriculture, for the protection of the health and life of animals or the
people of this state, may take measures to control, limit or prohibit the
use or intended use, or the presence of food additives. It may promulgate
rules relating thereto. Such rules may prescribe for any reason as set
forth in this section, that any food additive is unsafe within the
meaning of ORS 616.235 (1)(b). In promulgating rules under the provisions
of this section the authority of the department includes:
(1) Providing for an exemption from the operation of ORS 616.335 to
616.385 of the use or intended use of a specific food additive.
(2) Prescribing, with respect to one or more proposed uses of the
food additive involved, the conditions under which such additive may be
safely used including but not limited to, specifications as to the
particular food or classes of food in or in which such additive may be
used, the maximum quantity which may be used or permitted to remain in or
on such food, the manner in which such additive may be added to or used
in or on such food, and any directions or other labeling or packaging
requirements for such additive deemed necessary to assure the safety of
such use.
(3) Establishing and prescribing tolerances, if appropriate, to
assure that the proposed use of a food additive will be safe. The
department shall not:
(a) Fix such tolerance limitation at a level higher than it finds
to be reasonably required to accomplish the physical or other technical
effect for which such additive is intended.
(b) Establish a rule for such proposed use if it finds upon a fair
evaluation of the data before it, that such data does not establish that
such use would accomplish the intended physical or other technical effect.
(4) Prescribing for the exemption from the requirements of this
section any food additive, and any food bearing or containing such
additive, intended solely for investigational use by qualified experts
when in the opinion of the department, such exemption is consistent with
the public health. [1961 c.637 §8; 1973 c.227 §18](1) Whenever the State Department of Agriculture determines
under the provisions of ORS 616.341, 616.345 or 616.350 the fact that a
product or food does or may seriously endanger or affect the health or
life of animals or people, by reason of the addition to or the
application of a pesticide chemical or other poisonous or dangerous
chemical, substance or material in or on such product or food, the
department is authorized and is directed to take or carry out any
measure, action or procedure necessary for the protection of the health
or life of animals or people.
(2) The order, rules promulgated thereunder or amendments thereto,
may include:
(a) Seizing, embargoing and quarantining such product or food in
accordance with the applicable provisions of ORS 561.605 to 561.630.
(b) Prohibiting temporarily or permanently the sale, offer for sale
or the disposing of such product or food.
(c) Requiring reconditioning, processing or reprocessing,
relabeling or other procedures as set out in ORS 561.605 to 561.625
before such product or food may be sold, offered for sale or disposed of
for consumption by animals or people.
(d) Requiring such product or food to be destroyed without
indemnity if it is verified it is unfit or unsafe for consumption by
animals or people. [1961 c.637 §6; 1973 c.227 §19; 1975 c.304 §17] In the promulgation of rules under ORS
616.341, 616.345, 616.350, 616.366 and 616.380, the State Department of
Agriculture shall give appropriate consideration to:
(1) Measures and procedures required to protect the health and life
of animals and the people of this state.
(2) The laws of other states.
(3) The laws of the United States. The department’s rules shall
conform in so far as practicable with, but shall not be more restrictive
than, the laws and rules of the federal Food and Drug Administration.
(4) The opinions of recognized experts and governmental agencies in
the field of food additives. [1961 c.637 §9; 1973 c.227 §20](1) The State Department of
Agriculture, whenever public health or other considerations in this state
so require, is authorized to adopt, amend or repeal rules whether or not
in accordance with rules promulgated under the federal Act, prescribing
therein tolerances for:
(a) Any added, poisonous or deleterious substances;
(b) Food additives;
(c) Pesticide chemicals in or on raw agricultural commodities; or
(d) Color additives.
(2) Such authority includes but is not limited to:
(a) Zero tolerances, and exemptions from tolerances in the case of
pesticide chemicals in or on raw agricultural commodities;
(b) Prescribing the conditions under which a food additive or a
color additive may be safely used; and
(c) Exemptions where such food additive or color additive is to be
used solely for investigational or experimental purposes.
(3) Such rules may be promulgated upon the department’s own motion
or upon the petition of any interested party requesting that such rules
be promulgated. It is incumbent upon a petitioner to establish by data
submitted to the department that a necessity exists for such rule, and
that its effect will not be detrimental to the public health. If the data
furnished by the petitioner is not sufficient to allow the department to
determine whether such rule should be promulgated, the department may
require additional data be submitted and failure to comply with the
request shall be sufficient grounds to deny the request.
(4) In adopting, amending or repealing such rules the department
shall consider, among other relevant factors, the following which the
petitioner, if any, shall furnish:
(a) The name and all pertinent information concerning such
substance, including where available, its chemical identity and
composition;
(b) A statement of the conditions of the proposed use including
directions, recommendations and suggestions;
(c) Specimens of proposed labeling;
(d) All relevant data bearing on the physical or other technical
effect and the quantity required to produce such effect;
(e) The probable composition of any substance formed in or on a
food resulting from the use of such substance;
(f) The probable consumption of such substance in the diet of
humans and animals taking into account any chemically or
pharmacologically related substance in such diet;
(g) The safety factors which, in the opinion of experts qualified
by scientific training and experience to evaluate the safety of such
substances for the use or uses for which they are proposed to be used,
are generally recognized as appropriate for the use of animal
experimentation data;
(h) The availability of any needed practicable methods of analysis
for determining the identity and quantity of such substance in or on an
article, any substance formed in or on such article because of the use of
such substance, and the pure substance and all intermediates and
impurities; and
(i) Facts supporting a contention that the proposed use of such
substance will be a useful one. [1973 c.227 §22 (enacted in lieu of
616.365)]
Whenever the State Department of Agriculture determines the fact that a
product or food containing a food additive is or may seriously endanger
or affect the health or life of animals or people, it may seize, embargo
and quarantine such product or food, or take other necessary procedures
or action as authorized by ORS 616.355 for the regulation and control of
pesticide chemicals or other poisonous or dangerous chemicals. [1961
c.637 §13] All regulations
promulgated under ORS 616.335 to 616.385 shall only be promulgated after
public hearing and shall be in accordance with the applicable provisions
of ORS chapter 183. [1961 c.637 §15]SANITARY REGULATIONS FOR FOOD AND FOOD ESTABLISHMENTS As used in ORS
616.695 to 616.755, unless the context requires otherwise:
(1) “Department” means the State Department of Agriculture.
(2) “Food establishment” means:
(a) Any room, building, structure or place, used or intended for
use, or operated for storing, preparing, compounding, manufacturing,
processing, freezing, packaging, distributing, handling, salvaging or
displaying food.
(b) The ground upon which such place or business is operated or
used and so much ground adjacent thereto as is also used in carrying on
the business of the establishment. The department may prescribe such
additional area or places which, although they may not be contiguous or
adjacent to the above area or establishment, may be included therein.
(c) Vehicles, machinery, equipment, utensils, tools, fixtures,
implements, and all other articles or items, used in operating or
carrying on the business of a food establishment.
(3) “Food” means any article used, or intended to be used, for
food, ice, drink, confection or condiment, whether simple or compound, or
any part or ingredient thereof or in the preparation thereof, and for
human consumption.
(4) “Salvaging” means the business of reconditioning, repacking,
relabeling, cleaning or culling of foods that have been damaged or
adulterated as a result of fire, storm, flood, water, smoke, chemicals or
commercial transit accident. [1965 c.501 §1; 1975 c.389 §1; 1983 c.160 §3]The State Department of Agriculture shall enforce
the provisions of ORS 616.695 to 616.755 and adopt rules necessary
therefor in accordance with the applicable provisions of ORS chapter 183,
to insure and verify that:
(1) Food establishments are constructed and maintained in a clean,
healthful and sanitary condition. This shall include floors, walls,
ceilings, doors, windows, lighting and ventilation, toilet and lavatory
facilities, water supply, separation or partitioning of rooms, health and
cleanliness of personnel, cleanliness and sanitation of surrounding
premises, disposal of all waste and sewage material, insect and rodent
control, construction and sanitation of equipment and utensils, and
prohibition of pets therein. However, ORS 616.695 to 616.755 shall not be
applied to prevent licensing and operation of a food establishment solely
because such establishment is in an area which is part of and not
separate from a domestic kitchen if the establishment is upon
investigation by the department found to be constructed and maintained in
a clean, healthful and sanitary condition.
(2) Food establishments maintain time and temperature controls,
indicating and recording thermometers and indicating pressure gauges for
pressure cookers and retorts, minimum temperature and time period
standards for cooking foods, and other facilities necessary to carry out
the intent and purpose of ORS 616.695 to 616.755.
(3) Food dispensed, transported, sold, held for sale, stored,
salvaged or displayed, is not filthy, decomposed, putrid, unsafe,
contaminated, deleterious to health, unfit, unwholesome, unclean,
insanitary or diseased. [1965 c.501 §2; 1971 c.131 §1; 1975 c.389 §2;
1983 c.740 §233](1) Except as otherwise
provided in ORS 616.695 to 616.755, a person may not operate a food
establishment without first obtaining and thereafter maintaining a
license under this section. A person shall make an application for a
license to the State Department of Agriculture on forms prescribed by the
department. Each license shall expire on June 30 next following the date
of issuance.
(2) The department may, subject to the applicable provisions of ORS
chapter 183, suspend, revoke or refuse to issue a license if the licensee
has violated any of the provisions of ORS 616.695 to 616.755 or rules
adopted under ORS 616.695 to 616.755.
(3) A license is personal to the applicant and may not be
transferred. A new license is necessary if the business entity of the
licensee is changed, or if the membership of a partnership is changed,
irrespective of whether or not the business name is changed.
(4) The license shall cover all operations of the person licensed,
under one entity or ownership. With prior approval of the department, the
location of a licensed food establishment, or any part of a licensed food
establishment, may be moved without the requirement of a new license if
there is no change in the ownership or business entity.
(5) The license shall be posted in a conspicuous place in the main
office of the food establishment. Duplicate copies of the license shall
be conspicuously posted in branch offices, warehouses and other places
owned or operated by the licensee at locations other than the main
office. A license is automatically canceled if the food establishment
ceases or discontinues operations or business.
(6) Except as provided in subsection (10) of this section, the
license fee for a food establishment that is part of a domestic kitchen
is $175.
(7) Except as provided in subsection (10) of this section, the
license fees for a food establishment other than an establishment that is
part of a domestic kitchen, or other than a retail food store or a
warehouse, are:
(a) $300 if the gross sales of an applicant’s covered operations
are not more than $50,000;
(b) $425 if the gross sales of an applicant’s covered operations
are more than $50,000 and not more than $500,000;
(c) $500 if the gross sales of an applicant’s covered operations
are more than $500,000 and not more than $1 million;
(d) $650 if the gross sales of an applicant’s covered operations
are more than $1 million and not more than $5 million;
(e) $750 if the gross sales of an applicant’s covered operations
are more than $5 million and not more than $10 million; or
(f) $850 if the gross sales of an applicant’s covered operations
are more than $10 million.
(8) Except as provided in subsection (10) of this section, the food
establishment license fees for a retail food store, as defined by the
department by rule, are:
(a) $125 if the gross sales of an applicant’s covered operations
are not more than $50,000;
(b) $250 if the gross sales of an applicant’s covered operations
are more than $50,000 and not more than $500,000;
(c) $300 if the gross sales of an applicant’s covered operations
are more than $500,000 and not more than $1 million;
(d) $450 if the gross sales of an applicant’s covered operations
are more than $1 million and not more than $5 million;
(e) $550 if the gross sales of an applicant’s covered operations
are more than $5 million and not more than $10 million; or
(f) $650 if the gross sales of an applicant’s covered operations
are more than $10 million.
(9) Except as provided in subsection (10) of this section, the food
establishment license fees for a warehouse, as defined by the department
by rule, are:
(a) $100 if the gross sales of an applicant’s covered operations
are not more than $50,000;
(b) $125 if the gross sales of an applicant’s covered operations
are more than $50,000 and not more than $10 million; or
(c) $150 if the gross sales of an applicant’s covered operations
are more than $10 million.
(10) The department shall increase the license fee amounts
described in subsections (6) to (9) of this section by two percent
annually, rounded to the nearest whole dollar amount for assessment and
collection purposes. The department shall determine each annual increase
using the unrounded figure from the preceding year. The first increase in
the permissible fee amounts shall occur on July 1, 2006.
(11) In establishing the amount of the license fee for an
applicant, the department shall use the annual gross dollar volume of
sales of covered operations by that applicant within Oregon during the
prior calendar year or, if the applicant maintains sales records on a
fiscal basis, the prior fiscal year. If the applicant applying for an
original license or for a renewal license cannot provide the annual gross
dollar volume of sales of covered operations for a full calendar year,
the department shall base the fee on estimated annual gross sales of
covered operations by the applicant. If an applicant whose previous
year’s fee was determined using an estimated gross sales of covered
operations figure applies for renewal of that license, the fee for the
previous license year shall be adjusted to reflect the actual gross
dollar volume of sales of covered operations by the applicant. [1965
c.501 §3; 1975 c.389 §3; 1979 c.183 §2; 1982 s.s.1 c.4 §4; 1991 c.632 §2;
2005 c.735 §3]Note: The amendments to 616.706 by section 4, chapter 735, Oregon
Laws 2005, become operative January 2, 2010. See section 17, chapter 735,
Oregon Laws 2005. The text that is operative on and after January 2,
2010, is set forth for the user’s convenience.
616.706. (1) Except as otherwise provided in ORS 616.695 to
616.755, a person may not operate a food establishment without first
obtaining and thereafter maintaining a license under this section. A
person shall make an application for a license to the State Department of
Agriculture on forms prescribed by the department. Each license shall
expire on June 30 next following the date of issuance.
(2) The department may, subject to the applicable provisions of ORS
chapter 183, suspend, revoke or refuse to issue a license if the licensee
has violated any of the provisions of ORS 616.695 to 616.755 or rules
adopted under ORS 616.695 to 616.755.
(3) A license is personal to the applicant and may not be
transferred. A new license is necessary if the business entity of the
licensee is changed, or if the membership of a partnership is changed,
irrespective of whether or not the business name is changed.
(4) The license shall cover all operations of the person licensed,
under one entity or ownership. With prior approval of the department, the
location of a licensed food establishment, or any part of a licensed food
establishment, may be moved without the requirement of a new license if
there is no change in the ownership or business entity.
(5) The license shall be posted in a conspicuous place in the main
office of the food establishment. Duplicate copies of the license shall
be conspicuously posted in branch offices, warehouses and other places
owned or operated by the licensee at locations other than the main
office. A license is automatically canceled if the food establishment
ceases or discontinues operations or business.
(6) The license fee for a food establishment that is part of a
domestic kitchen is $189.
(7) The license fees for a food establishment other than an
establishment that is part of a domestic kitchen, or other than a retail
food store or a warehouse, are:
(a) $325 if the gross sales of an applicant’s covered operations
are not more than $50,000;
(b) $460 if the gross sales of an applicant’s covered operations
are more than $50,000 and not more than $500,000;
(c) $541 if the gross sales of an applicant’s covered operations
are more than $500,000 and not more than $1 million;
(d) $704 if the gross sales of an applicant’s covered operations
are more than $1 million and not more than $5 million;
(e) $812 if the gross sales of an applicant’s covered operations
are more than $5 million and not more than $10 million; or
(f) $920 if the gross sales of an applicant’s covered operations
are more than $10 million.
(8) The food establishment license fees for a retail food store, as
defined by the department by rule, are:
(a) $135 if the gross sales of an applicant’s covered operations
are not more than $50,000;
(b) $271 if the gross sales of an applicant’s covered operations
are more than $50,000 and not more than $500,000;
(c) $325 if the gross sales of an applicant’s covered operations
are more than $500,000 and not more than $1 million;
(d) $487 if the gross sales of an applicant’s covered operations
are more than $1 million and not more than $5 million;
(e) $595 if the gross sales of an applicant’s covered operations
are more than $5 million and not more than $10 million; or
(f) $704 if the gross sales of an applicant’s covered operations
are more than $10 million.
(9) The food establishment license fees for a warehouse, as defined
by the department by rule, are:
(a) $108 if the gross sales of an applicant’s covered operations
are not more than $50,000;
(b) $135 if the gross sales of an applicant’s covered operations
are more than $50,000 and not more than $10 million; or
(c) $162 if the gross sales of an applicant’s covered operations
are more than $10 million.
(10) In establishing the amount of the license fee for an
applicant, the department shall use the annual gross dollar volume of
sales of covered operations by that applicant within Oregon during the
prior calendar year or, if the applicant maintains sales records on a
fiscal basis, the prior fiscal year. If the applicant applying for an
original license or for a renewal license cannot provide the annual gross
dollar volume of sales of covered operations for a full calendar year,
the department shall base the fee on estimated annual gross sales of
covered operations by the applicant. If an applicant whose previous
year’s fee was determined using an estimated gross sales of covered
operations figure applies for renewal of that license, the fee for the
previous license year shall be adjusted to reflect the actual gross
dollar volume of sales of covered operations by the applicant.(1) No license or duplicate of a license, as prescribed
in ORS 616.706, is necessary for food establishments where the principal
activity is the receiving, storage, sorting, cleaning and packing of
fresh fruits and vegetables.
(2) All provisions of ORS 616.695 to 616.755 other than licensing
apply to food establishments set forth in subsection (1) of this section.
(3) The provisions of ORS 616.695 to 616.755 do not apply to:
(a) Restaurants, bed and breakfast facilities, commissaries,
vending machines and mobile food and beverage units licensed under ORS
624.010 to 624.120, 624.310 to 624.430 or those which are exempted under
ORS 624.330.
(b) Food service facilities not preparing food for distribution to
the public or to institutional facilities licensed and regulated by the
Department of Human Services.
(c) Shellfish operations licensed under ORS chapter 622.
(d) A person processing, manufacturing or packaging food for family
use or consumption.
(e) Commercial transit salvage operations not involving sale of
food to the general public. [1965 c.501 §4; 1973 c.423 §1; 1975 c.389 §4;
1982 s.s.1 c.4 §5; 1983 c.160 §4; 1987 c.226 §9](1) The State Department of Agriculture may
inspect the applicant’s food establishment and shall not issue a license
until or unless such establishment is in compliance with the provisions
of ORS 616.695 to 616.755 and regulations promulgated thereunder.
(2) The provisions of ORS 616.695 to 616.755 are in addition to and
not in lieu of all other laws relating to food and to food
establishments. [1965 c.501 §5; 1975 c.389 §5; 2001 c.104 §242] (1) Except as
provided in subsection (5) of this section, the provisions of ORS 616.695
to 616.755 do not apply to a food establishment that is subject to and is
being inspected by a federal agency.
(2) To be exempt from the provisions of ORS 616.695 to 616.755 as
set forth in subsection (1) of this section, a person shall file an
application for such exemption on forms prescribed by the State
Department of Agriculture.
(3) An applicant for renewal of a license, or any person operating
under an exemption approved by the department, shall file an application
for exemption with the department prior to December 15 of each year,
covering the subsequent year of operation.
(4) An applicant to operate a new food establishment shall file an
application and receive approval thereof, if any, prior to starting such
business.
(5) Unless exempt from licensing as provided in ORS 616.711, food
establishments exempt from certain provisions of ORS 616.695 to 616.755
as authorized in this section, shall be subject to the provisions of ORS
616.706 and shall be required to obtain and maintain licenses thereunder.
[1965 c.501 §6; 1975 c.389 §6](1) The provisions of
ORS 616.695 to 616.755 do not prohibit any city from enacting and
enforcing any ordinance establishing a system, program, inspection
services and licensing thereunder, within the corporate limits or
boundaries thereof, which carries out the purposes and intent of ORS
616.695 to 616.755, if the same is at least equal to the provisions of
ORS 616.695 to 616.755 and regulations promulgated thereunder. A copy of
each such ordinance, including any amendment thereof, shall be forwarded
by the city to the State Department of Agriculture.
(2) Not less than once each two years the department shall
investigate the ordinance and determine if it meets the requirements and
standards of subsection (1) of this section and if such system, program
and inspections thereunder are being properly carried out and enforced.
If the department finds such program, system and inspections do not meet
these requirements and standards, it shall give written notice of such
finding to the chief administrative officer of the city.
(3) If the department thereafter finds, not less than 30 days after
the date of giving notice, that such system, program and inspections
continue to fail to be enforced properly or are not carrying out the
intent and purposes of ORS 616.695 to 616.755, the department shall make
a finding to that effect and thereupon the provisions of ORS 616.695 to
616.755 shall become applicable to all persons and food establishments
within the corporate limits of such city. [1965 c.501 §7; 1975 c.389 §7] The State Department of
Agriculture shall deposit all fees paid to it under this chapter in the
Department of Agriculture Service Fund. Such fees are continuously
appropriated to the department for the purpose of administering and
enforcing the provisions of this chapter. [1965 c.501 §8; 1975 c.389 §8;
1979 c.499 §20] A food establishment
shall be considered unclean, unhealthful and insanitary if:
(1) Food in the food establishments is not protected from
adulteration as defined in ORS 616.235, as required by the State
Department of Agriculture;
(2) The refuse, dirt and waste products, subject to decomposition
or fermentation incident to the operation of the food establishment are
not removed as required by the department;
(3) All trunks, trays, boxes, baskets, buckets, or other
receptacles, chutes, platforms, racks, troughs, shelves and all knives,
saws, cleavers and other utensils and machinery used in operation of the
food establishment are not thoroughly cleaned as required by the
department;
(4) Proper toilet and lavatory facilities are not provided for
employees, or not maintained and kept in a clean and sanitary condition;
or
(5) The clothing and persons of operatives, employees, clerks or
other persons therein employed are unclean. [Amended by 1975 c.389 §9] (1)
Whenever the State Department of Agriculture determines that any floor,
sidewall, ceiling, locker, closet, furniture, receptacle, implements or
machinery of any food establishment is kept in an unclean, unhealthful or
insanitary condition, the department shall:
(a) Notify the owner or person in charge of such food establishment
that such food establishment shall not be used for such purposes until it
is put in a sanitary condition by making the changes ordered by the
department in the notice; and
(b) Post a notice upon the food establishment found in an unclean,
unhealthful or insanitary condition, to the effect that it is condemned
for further use on account of the unclean, unhealthful or insanitary
condition.
(2) The notice shall not be removed from any such food
establishment until the same has been put in a sanitary condition. A
continued use of such food establishment without making the changes
ordered, or unauthorized removal of the notice is a violation of this
section. [Amended by 1975 c.389 §10] (1) The
Department of Human Services may, by rule, define certain communicable
diseases which may be spread to the public through the handling of food
in food establishments.
(2) No owner or employer shall require, permit or suffer any person
to work, nor shall any person work, in a food establishment who is
affected with a disease described in subsection (1) of this section.
[Amended by 1973 c.829 §55; 1975 c.389 §11] If the
State Department of Agriculture for reasonable cause believes that any
person working in any food establishment is affected with any infectious
or contagious disease, the department may require the person to be
examined by a competent physician and that the physician furnish the
department with a certificate stating whether upon examination the
physician has found the person to be affected with any infectious or
contagious disease. If within five days after so required the person has
not furnished the department with such a certificate by a competent
physician, the person is guilty of a violation of ORS 616.745 and the
department may apply to the circuit court to enjoin the person from
continuing to work in the food establishment until the certificate is
furnished. The circuit court hereby is authorized to issue the
injunction. [Amended by 1975 c.389 §12] The State
Department of Agriculture may, for the purpose of enforcing the
provisions of ORS 616.745 and 616.750, request information from any city,
county or state health officer, bureau, board or commission within
Oregon. Such officer, bureau, board or commission, when so requested,
shall furnish the department any and all information which the officer,
bureau, board or commission may have.STANDARDS OF QUALITY AND IDENTITY FOR FLOUR PRODUCTS As used in ORS
616.775 to 616.790 unless the context requires otherwise:
(1) “Bread,” “rolls” and “buns” have the same meaning as they have
in ORS 625.212.
(2) “Flour,” “white flour,” “wheat flour,” “plain flour,” “bromated
flour,” “self-rising flour,” “self-rising white flour,” “self-rising
wheat flour,” “phosphated flour,” “phosphated white flour” and
“phosphated wheat flour” have the same meaning as they have in the
definitions and standards promulgated by the State Department of
Agriculture pursuant to ORS 616.780 and 625.160.
(3) “Macaroni products,” “vegetable macaroni products,” “macaroni
products made with nonfat milk,” “noodle products” and “vegetable noodle
products” have the same meaning as they have in the definitions and
standards promulgated by the State Department of Agriculture pursuant to
ORS 616.780.
(4) “Enriched” as applied to any of the flours, macaroni products
and noodle products defined in subsections (2) and (3) of this section
means the addition of the vitamins, minerals and other nutrients
necessary to make that food conform to the definition and standards for
enriched flour, enriched macaroni products and enriched noodle products
promulgated by the State Department of Agriculture pursuant to ORS
616.780 and 625.160. [1971 c.176 §5; 1975 c.265 §3]The State Department of Agriculture shall adopt and
promulgate standards of identity or standards of quality for flours,
macaroni products and noodle products pursuant to the provisions of ORS
616.230 for those flours, macaroni products and noodle products for which
definitions and standards have been promulgated by authority of the
United States. The definitions and standards so promulgated shall conform
so far as practicable to the definitions and standards promulgated by
authority of the United States and may not be inconsistent with
definitions and standards promulgated by such authority. The department
shall periodically amend its definitions and standards so as to keep in
harmony as far as practicable with the definitions and standards
promulgated by authority of the United States. The other applicable
provisions of ORS 616.205 to 616.385 shall apply to such flours, macaroni
products and noodle products and to any standards of identity or quality
promulgated hereunder. [1971 c.176 §4; 2001 c.320 §8](1) It shall be unlawful for any
person to manufacture, mix, compound, sell or offer for sale for human
consumption any of the flours, macaroni products or noodle products
specified in ORS 616.775 (2) and (3) unless they are enriched.
(2) Subsection (1) of this section shall not apply to flours sold
to distributors, commercial bakers, or other processors if such flours
will be:
(a) Resold to a distributor, commercial baker or other processor;
(b) Used in the manufacture, mixing or compounding of:
(A) Enriched flour, enriched macaroni products or enriched noodle
products; or
(B) Enriched breads, enriched rolls or enriched buns as defined by
ORS 625.212 (3); or
(c) Used in the manufacture of a nonbakery product such as
specified in ORS 625.010 (2). [1971 c.176 §6](1) The State
Department of Agriculture shall enforce ORS 616.775 to 616.790 and
616.992 and shall have, in connection therewith, all the powers conferred
and imposed on it by law and any other powers necessary or proper to
enable it to enforce ORS 616.775 to 616.790 and 616.992.
(2) For the purpose of ORS 616.775 to 616.790 and 616.992 the State
Department of Agriculture, or such officers or employees of the
department as are designated, is authorized:
(a) To take food samples for analysis;
(b) To conduct examinations and investigations;
(c) To enter at reasonable times any factory, mill, bakery,
warehouse, shop or establishment where any flour, bread, rolls, buns,
macaroni products or noodle products specified in ORS 616.780 are
manufactured, processed, packed, sold or held, or any vehicle being used
for the transportation thereof;
(d) To inspect any such place or vehicle and any flours, breads,
rolls, buns, macaroni products or noodle products specified in ORS
616.780, and all pertinent equipment, materials, containers and labeling;
and
(e) To make reasonable rules and regulations to carry out ORS
616.775 to 616.790, 616.992, 625.160, 625.212 and 625.215, subject to the
applicable provisions of ORS chapter 183. Such rules and regulations
shall be published as provided by ORS 561.190.
(3) Refusal to furnish authorized officers and employees of the
State Department of Agriculture, upon demand either personal or in
writing, with a sufficient sample for analysis of any food product
specified in subsection (2) of this section after tender of the market
price therefor is prima facie evidence that such food is not enriched as
required. [1971 c.176 §7; 1973 c.227 §25; 1975 c.265 §4; 2003 c.14 §365]OPEN DATE LABELINGORS 616.800 to 616.835 and 616.994 may be
cited as the Open Date Labeling Law. [1973 c.173 §2] As used
in ORS 616.800 to 616.835 and 616.994, unless the context requires
otherwise:
(1) “Food” means any substance used or intended to be used for
human consumption as food, drink or condiment.
(2) “Open date” means a date clearly visible to retail consumers
showing the pull date, packing date or other date described in ORS
616.835 (2).
(3) “Packing date” means the date specifying the time a perishable
food was packaged in its final form for sale to the consumer.
(4) “Perishable food” means any food that may spoil or otherwise
become unfit for human consumption because of its nature, type or
physical condition. “Perishable food” includes, but is not limited to,
fresh or processed meats, poultry, seafood, dairy products, bakery
products, eggs in the shell, and foods that have been packaged or
refrigerated. ORS 616.800 to 616.835 and 616.994 shall not apply to fresh
fruits or vegetables or to foods that have been canned or frozen.
(5) “Pull date” means, whichever is earlier, the date specifying
the time:
(a) The perishable food manufacturer, processor or packager
recommends that a perishable food should be removed from retail sale,
allowing the consumer time for normal home consumption or use under
proper care and storage conditions; or
(b) A perishable food should no longer be offered for sale or sold
as fresh. A perishable food shall be considered fresh only so long as
significant changes in appearance, taste, odor, nutritional value, or
other indicia of quality or fitness for human consumption have not taken
place or are not likely to have taken place under generally accepted food
handling practices for that particular food. [1973 c.173 §3]ORS 616.800 to 616.835
and 616.994 do not apply to alcoholic beverages. [1973 c.173 §9]No person shall sell or offer for sale at retail any
packaged perishable food unless the package bears a clearly marked,
printed or stamped label showing the open date for the perishable food in
the package. Such label shall be so designed and placed as to be clearly
visible to the consumer. [1973 c.173 §4](1) The perishable food manufacturer,
processor or packager shall affix, print or stamp the label required by
ORS 616.815 to the perishable food retail package and to all closed
shipping cartons, containers or wrappers of such perishable food packages
not later than the time of delivery of the perishable food packages to
the retail seller.
(2) No perishable food manufacturer, processor or packager shall
fail to comply with subsection (1) of this section. [1973 c.173 §5](1) No person shall sell or offer for sale at retail any packaged
perishable food after the expiration of the open pull date appearing on
the label of the package or container unless:
(a) The package has been separated from packages of perishable food
with open pull dates that have not expired;
(b) Each such package or group of packages is clearly identified in
retail display as having an expired open pull date; and
(c) The food is fit for human consumption according to applicable
state and federal law.
(2) Notwithstanding the provisions of this section, a vendor shall
be allowed the first eight business hours after the expiration of the
open pull date within which to remove all packages with an expired pull
date. [1973 c.173 §6]
No person shall:
(1) Alter, deface or remove the open date from any perishable food
retail or shipping package carton, container or wrapper.
(2) Label any perishable food retail or shipping package carton,
container or wrapper in a manner that does not conform to the rules
promulgated pursuant to ORS 616.835. [1973 c.173 §7] In accordance with any applicable
provision of ORS chapter 183, the State Department of Agriculture, in
consultation with the industries affected, shall promulgate rules to
carry out ORS 616.800 to 616.835 and 616.994. Such rules shall include,
but are not limited to:
(1) Establishing which particular foods are subject to ORS 616.800
to 616.835 and 616.994.
(2) Establishing which one or more of the following types of open
date is to be used for particular groups or classes of perishable foods:
(a) The packing date.
(b) The pull date.
(c) The date on which fowl, including chickens, fryers, turkeys,
ducks, geese and other domesticated birds, are killed or slaughtered to
be processed into perishable food.
(3) Specifying the size, content and form of the labeling
information required by ORS 616.800 to 616.835 and 616.994.
(4) Exempting from the operation of ORS 616.800 to 616.835 and
616.994 those perishable foods for which open date labeling would be:
(a) Impractical or not meaningful because of the size of the
package or the nature of the perishable food;
(b) Possibly unconstitutional as interference with the free
movement of goods in interstate commerce. [1973 c.173 §8]UNIT PRICING As used
in ORS 616.850 to 616.890 and 616.996, unless the context requires
otherwise:
(1) “Consumer commodity” means any of the following items:
(a) Food, including all material, solid, liquid or mixed, whether
simple or compound, used or intended for consumption by human beings or
domestic animals normally kept as household pets, and all substances or
ingredients to be added thereto for any purposes;
(b) Paper products, including napkins, towels, facial tissues,
toilet tissues, disposable plates and cups;
(c) Wrapping products, including those made of paper, plastic and
aluminum; and
(d) Soaps, detergents, cleaning aids, deodorizing aids, waxes and
wax removers, disinfectants, polishes and polish removers, bleaches,
scouring pads and all other laundry and household cleaning products.
(2) “Grocery store or food market” means any retail establishment
or department thereof:
(a) That sells consumer commodities, the gross annual receipts from
the sale of which is $1.5 million or more; and
(b) That is part of a chain system or contracts with a supplier or
cooperative which utilizes common purchasing, warehousing or distribution
facilities and the chain, cooperative or supplier has computer hardware
for inventory control, ordering or pricing labels.
(3) “Package” means any container or wrapping in which any consumer
commodity is enclosed for use in the delivery or display of that consumer
commodity to retail purchasers.
(4) “Unit retail price” means the retail price of the contents of a
package of any consumer commodity, expressed in terms of the retail price
of such contents per single whole unit of weight, volume, measure or
count, computed to the nearest 10th of a cent when less than $1 and to
the nearest cent when $1 or more. [1977 c.181 §3; 1979 c.827 §1]ORS 616.850 to
616.890 and 616.996 do not apply to:
(1) Fresh fruits and vegetables.
(2) Products sold in quantities of one avoirdupois ounce, or 28.35
grams or one fluid ounce, or less.
(3) Packaged consumer commodities that may be lawfully sold only
upon the written or oral direction of a licensed practitioner. As used in
this subsection, “practitioner” has the meaning for the term provided in
ORS 689.005.
(4) Alcoholic beverages that are subject to the Federal Alcohol
Administration Act.
(5) Tobacco, cosmetics and personal care products, hardware and
household equipment.
(6) Products sold in one size limit only, or in such manner that
the State Department of Agriculture determines that no comparison is
meaningful.
(7) Consumer commodities sold for immediate consumption on the
premises.
(8) Patent or proprietary medicines.
(9) Products sold through coin-operated vending machines or
products sold by manual distribution from mobile catering units to
individual consumers. [1977 c.181 §4; 1979 c.777 §57; 1979 c.785 §6; 1979
c.827 §4](1) Except as provided in ORS 616.855 and
616.865, no person shall sell or offer for retail sale at a grocery store
or food market any packaged consumer commodity unless there is clearly
displayed upon the commodity package or at a place in reasonable
proximity to where the commodity is offered for sale a statement of the
unit retail price of the commodity pursuant to ORS 616.870 and the total
retail price of the commodity.
(2) If the tag, stamp, sign or label used to display the unit
retail price is not affixed directly to the consumer commodity, the tag,
stamp, sign or label shall also contain the brand name and the quantity
or size of the product by weight, measure or count.
(3) Whenever the State Department of Agriculture adopts
administrative rules under ORS 616.875 wherein formats and methods to
explain unit pricing are prescribed, such explanations of the use of unit
pricing shall be provided and displayed by each grocery store. [1977
c.181 §5; 1979 c.827 §2] When a packaged consumer
commodity is sold or offered for sale at retail at a price lower than the
price at which the commodity is regularly sold or offered for sale, the
retail seller is exempt from the requirements of ORS 616.860 (1) as to
such commodities unless the lower price is to be in effect for more than
30 consecutive business days. [1977 c.181 §6] Retail sellers
of packaged consumer commodities shall express unit retail price
statements in terms of the price per single whole unit of weight, volume,
measure or count as prescribed by administrative rules adopted by the
State Department of Agriculture under ORS 616.875 for particular consumer
commodities or groups for consumer commodities. [1977 c.181 §7; 1979
c.827 §3](1) In accordance with any
applicable provision of ORS chapter 183, the State Department of
Agriculture may promulgate rules for the administration and enforcement
of the provisions of ORS 616.850 to 616.890 and 616.996.
(2) A retail establishment or department thereof shall be
considered to have gross annual receipts from the sale of consumer
commodities of $1.5 million or more as described in ORS 616.850 (2),
unless the establishment demonstrates to the department that it does not.
The determination of the director shall be deemed a final order not in a
contested case for purposes of judicial review under ORS chapter 183.
[1977 c.181 §8] Nothing in ORS
616.850 to 616.890 and 616.996 shall be construed as requiring the State
Department of Agriculture to cite incidental or minor violations of ORS
616.860 to 616.870 whenever the department believes that the public
interest will be served adequately in the circumstances by issuance of an
alleged written warning notice. Each such notice issued shall include the
name and address of the grocery store or food market, the date of the
notice issuance, a description of the alleged violation and a statement
of the penalties for a continued course of violation. [1977 c.181 §9]ORS 616.850 to 616.890 and 616.996 may be
cited as the Unit Pricing Law. [1977 c.181 §2]PENALTIES The first violation of any
provisions of this chapter, ORS 632.275 to 632.290, 632.450 to 632.490
and 632.900 to 632.985 or of any rule promulgated pursuant thereto is a
Class B misdemeanor, and a Class A misdemeanor for a second or subsequent
offense. [1973 c.227 §28]
Violation of any provision of ORS 616.800 to 616.835 or of any rule
promulgated pursuant thereto is a Class B misdemeanor. [1973 c.173 §10] (1) Any person who pursues
a continued course of violation of ORS 616.860 to 616.870 shall forfeit
and pay to the General Fund of the State Treasury, a civil penalty, in an
amount determined by the Director of Agriculture, of not more than $250
for each offense.
(2) Such civil penalty may be recovered in an action brought
thereon in the name of the State of Oregon in any court of appropriate
jurisdiction or may be imposed as provided in ORS 183.745.
(3) In any court action with respect to a civil penalty, including
judicial review under ORS 183.745, the court may review the penalty as to
both liability and reasonableness of amount. [Formerly 616.885]
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