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. [1999 c.197 §2] (1) If the State Department of
Agriculture believes that any person is engaged in or is about to engage
in any act or practice that is a violation of ORS 621.056, 621.057,
621.062, 621.070, 621.072, 621.076, 621.084, 621.088, 621.117, 621.122,
621.124, 621.161, 621.166, 621.183, 621.198, 621.226 or 621.259 or any
rule or standard adopted under ORS 621.060, 621.083, 621.096, 621.224 or
621.261, the department may apply for a temporary restraining order or
permanent injunction pursuant to ORCP 79 or ORS 561.280 prohibiting the
person from 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. 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.
(2) In a proceeding for an injunction under subsection (1) of this
section, an applicant or licensee may not, as a defense, litigate
collaterally any matter concerning the refusal to grant or the revocation
or suspension of a license required by or issued under ORS 621.070,
621.072, 621.161, 621.171 or 621.266 if the applicant or licensee was
heard or might have been heard on that matter directly in an
administrative hearing under ORS 183.413 to 183.470, or on an appeal from
such a hearing. [1955 c.714 §1; 1961 c.425 §13; 1999 c.197 §6] The provisions of
ORS 621.062, 621.070, 621.072, 621.076, 621.084, 621.088, 621.116,
621.117 and 621.259 and standards developed under ORS 621.060, 621.083 or
621.224 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 those animals for human or other consumption
without complying with the provisions of ORS 621.062, 621.070, 621.072,
621.076, 621.084, 621.116, 621.117 or 621.259 or standards developed
under ORS 621.060, 621.083 or 621.224 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. [Formerly 621.089] The State
Department of Agriculture shall deposit all fees paid to it under this
chapter in the Department of Agriculture Service Fund. All such fees are
continuously appropriated to the department for the purpose of
administering and enforcing this chapter. [1963 c.48 §2; 1979 c.499 §23](1) The State Department of Agriculture may permit
the entry and use in this state of fluid milk produced in other
governmental units subject to the conditions set forth in this section.
For the purposes of this section, the term “governmental unit” means any
state, territory of the United States or political subdivision 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 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 a governmental unit is of a nature
that will reasonably ensure that fluid milk produced thereunder will be
of a quality substantially 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 be granted only in cases where 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 the right or
privilege of any person under the jurisdiction of 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 ensure an
uninterrupted interchange of wholesome and nutritious fluid milk between
that governmental unit and this state. [Formerly 621.105]GRADING AND STANDARDS OF IDENTITY 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. [Formerly 621.206] 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.
[Formerly 621.216](1) The State Department of Agriculture shall
establish by rule, as provided in ORS chapter 183, official state grades
and standards of quality applicable to all milk, fluid milk and dairy
products.
(2) The grades and standards for milk, fluid milk and dairy
products may from time to time be changed by the department as provided
in subsection (1) of this section. [Formerly 621.201]
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. [1999 c.197 §3](1) The State Department of Agriculture shall establish
official state standards of quality 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 dairy farms and milk processing
plants;
(c) The standard of sanitary maintenance of 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 those facilities;
(e) The quality 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. 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. [Amended by 1971 c.769 §1; 1981
c.523 §3; 1999 c.197 §8] A person
shall not process, distribute, sell or offer or expose for sale fluid
milk that does not conform to a standard of identity established by the
State Department of Agriculture. [1959 c.346 §3; 1999 c.197 §9] The State Department of Agriculture
shall establish two standards of quality for fluid milk. The higher
standard of quality shall be designated as “grade A.” The other standard
of quality shall be designated as “grade B.” [Amended by 1955 c.714 §12;
1999 c.197 §10; 2003 c.14 §372]GRADE DESIGNATION USE 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 to use the grade
designation. [Amended by 1999 c.197 §11](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;
(b) Pays the designated license fee;
(c) Is engaged in the business of producing or distributing fluid
milk; and
(d) Meets the requirements of the particular grade designation for
which application is made.
(2) If a person carries on the activities of a producer and a
producer-distributor, the person must obtain a separate license for each
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.
(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 must first obtain a license from the
department authorizing that person to sample and grade fluid milk. Each
applicant for a milk sampler’s and grader’s license shall, by written
examination, demonstrate 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 at such
times and places as appears to be necessary and practicable.
(5) Before and after issuing a license to 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, milk processing plant or
distribution center and investigate other factors the department
determines may relate to the production, processing or distribution of
fluid milk. The physical facilities must conform to the production,
processing or distribution requirements for the fluid milk grade
designation sought or held.
(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.
(7) The department shall establish license fee schedules for milk
samplers and graders in accordance with ORS chapter 183. A fee may not be
less than $25 or more than $50.
(8) Except as provided in subsection (10) of this section, the
license fees for producer-distributors, distributors and nonprocessing
distributors are:
(a) $125 if the applicant’s annual gross dollar volume of sales and
services is not more than $50,000;
(b) $175 if an applicant’s annual gross dollar volume of sales and
services is more than $50,000 and not more than $500,000;
(c) $300 if an applicant’s annual gross dollar volume of sales and
services is more than $500,000 and not more than $1 million;
(d) $450 if an applicant’s annual gross dollar volume of sales and
services is more than $1 million and not more than $5 million;
(e) $600 if an applicant’s annual gross dollar volume of sales and
services is more than $5 million and not more than $10 million; or
(f) $750 if an applicant’s annual gross dollar volume of sales and
services is more than $10 million.
(9) Except as provided in subsection (10) of this section, the
license fees for producers are:
(a) $125 if the applicant’s annual gross sales are not more than
$50,000;
(b) $175 if an applicant’s annual gross sales are more than $50,000
and not more than $500,000;
(c) $300 if an applicant’s annual gross sales are more than
$500,000 and not more than $1 million;
(d) $450 if an applicant’s annual gross sales are more than $1
million and not more than $5 million;
(e) $600 if an applicant’s annual gross sales are more than $5
million and not more than $10 million; or
(f) $750 if an applicant’s annual gross sales are more than $10
million.
(10) The department shall increase the license fee amounts
described in subsections (8) and (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 fee amounts shall occur on July 1, 2006.
(11) In establishing the amount of the license fee for an applicant
under this section, the department shall use the annual gross dollar
volume of sales and services by that applicant within Oregon during the
prior calendar year or, if the applicant maintains sales and service
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 and services for a full calendar
year, the department shall base the fee on estimated annual gross sales
and services by the applicant. If an applicant whose previous year’s fee
was determined using an estimated gross sales and services 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 and
services by the applicant.
(12) A distributor or producer-distributor must obtain a license
and pay license fees as provided under subsection (8) of this section for
each physical facility used to produce, process or distribute fluid milk.
A person is not required to obtain a distributor or producer-distributor
license to act as a milk hauler or to operate receiving or transfer
stations in conjunction with a milk processing plant.
(13) The department may refuse to issue or renew, or may suspend or
revoke, a license for any violation of this section or ORS 621.062,
621.070, 621.076, 621.084, 621.088, 621.117, 621.122 or 621.259 or
processes or standards established under ORS 621.060 or 621.083.
[Formerly 621.075; 1967 c.254 §1; 1971 c.773 §8; 1982 s.s.1 c.4 §7; 1991
c.632 §4; 1997 c.249 §188; 1999 c.197 §12; 2005 c.735 §9]Note: The amendments to 621.072 by section 10, 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.
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;
(b) Pays the designated license fee;
(c) Is engaged in the business of producing or distributing fluid
milk; and
(d) Meets the requirements of the particular grade designation for
which application is made.
(2) If a person carries on the activities of a producer and a
producer-distributor, the person must obtain a separate license for each
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.
(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 must first obtain a license from the
department authorizing that person to sample and grade fluid milk. Each
applicant for a milk sampler’s and grader’s license shall, by written
examination, demonstrate 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 at such
times and places as appears to be necessary and practicable.
(5) Before and after issuing a license to 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, milk processing plant or
distribution center and investigate other factors the department
determines may relate to the production, processing or distribution of
fluid milk. The physical facilities must conform to the production,
processing or distribution requirements for the fluid milk grade
designation sought or held.
(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.
(7) The department shall establish license fee schedules for milk
samplers and graders in accordance with ORS chapter 183. A fee may not be
less than $25 or more than $50.
(8) The license fees for producer-distributors, distributors and
nonprocessing distributors are:
(a) $135 if the applicant’s annual gross dollar volume of sales and
services is not more than $50,000;
(b) $189 if an applicant’s annual gross dollar volume of sales and
services is more than $50,000 and not more than $500,000;
(c) $325 if an applicant’s annual gross dollar volume of sales and
services is more than $500,000 and not more than $1 million;
(d) $487 if an applicant’s annual gross dollar volume of sales and
services is more than $1 million and not more than $5 million;
(e) $649 if an applicant’s annual gross dollar volume of sales and
services is more than $5 million and not more than $10 million; or
(f) $812 if an applicant’s annual gross dollar volume of sales and
services is more than $10 million.
(9) The license fees for producers are:
(a) $135 if the applicant’s annual gross sales are not more than
$50,000;
(b) $189 if an applicant’s annual gross sales are more than $50,000
and not more than $500,000;
(c) $325 if an applicant’s annual gross sales are more than
$500,000 and not more than $1 million;
(d) $487 if an applicant’s annual gross sales are more than $1
million and not more than $5 million;
(e) $649 if an applicant’s annual gross sales are more than $5
million and not more than $10 million; or
(f) $812 if an applicant’s annual gross sales are more than $10
million.
(10) In establishing the amount of the license fee for an applicant
under this section, the department shall use the annual gross dollar
volume of sales and services by that applicant within Oregon during the
prior calendar year or, if the applicant maintains sales and service
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 and services for a full calendar
year, the department shall base the fee on estimated annual gross sales
and services by the applicant. If an applicant whose previous year’s fee
was determined using an estimated gross sales and services 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 and
services by the applicant.
(11) A distributor or producer-distributor must obtain a license
and pay license fees as provided under subsection (8) of this section for
each physical facility used to produce, process or distribute fluid milk.
A person is not required to obtain a distributor or producer-distributor
license to act as a milk hauler or to operate receiving or transfer
stations in conjunction with a milk processing plant.
(12) The department may refuse to issue or renew, or may suspend or
revoke, a license for any violation of this section or ORS 621.062,
621.070, 621.076, 621.084, 621.088, 621.117, 621.122 or 621.259 or
processes or standards established under ORS 621.060 or 621.083. (1) In addition to the
powers conferred on the State Department of Agriculture under ORS
621.018, 621.060, 621.072, 621.076, 621.083 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
621.062, 621.070, 621.072, 621.076, 621.084, 621.088, 621.117, 621.122
(7), 621.226 or 621.259, standards adopted under ORS 621.060, 621.083 or
621.224 or any department rules.
(2) A suspension shall not exceed 10 days except that, before
lifting the suspension, the department shall ensure that the violation
causing the suspension has been corrected.
(3) 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 imposed, provided written notification to the violator
that another violation of the same character would be grounds for
suspension. 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 183.413 to 183.470 do not apply to
suspensions imposed under authority of this section, although appeal
shall be in the manner provided by ORS 183.484, 183.486, 183.490 and
183.497. This subsection shall not deprive a person of the right to
present any defense to a criminal prosecution instituted for violation of
ORS 621.062, 621.070, 621.072, 621.076, 621.084, 621.088, 621.117,
621.122 (7), 621.226 or 621.259, nor shall it deprive a person of the
right to a declaratory judgment. [Formerly 621.120](1) A person
shall not sell, expose or offer for sale or knowingly transport fluid
milk in containers:
(a) If the fluid milk has been produced or processed in violation
of ORS 621.070.
(b) If the container or container cap is not labeled with the name
and address of the producer, distributor, nonprocessing distributor or
producer-distributor of the milk and the applicable state grade. However,
containers of unpasteurized fluid milk that are shipped by producers to a
milk processing plant or a dairy products plant for pasteurization and
that are identified by shipper name or number shall not be required to be
so labeled.
(2) A person shall not bottle unpasteurized fluid milk except on
the premises where it is produced.
(3) A producer or producer-distributor shall not sell or offer for
sale fluid milk during the period 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 621.073.
(4) 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 621.073.
(5) A distributor shall not knowingly purchase fluid milk from any
person other than a person licensed under ORS 621.072.
(6) Each container of fluid milk sold or exposed 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
the distributor or producer-distributor. [Formerly 621.115] The State Department
of Agriculture may establish standards of procedure and acceptable types
of equipment for use by graders in taking and safeguarding samples of
milk for analysis. [1959 c.145 §7; 1979 c.320 §11; 1999 c.197 §14]WEIGHING, SAMPLING AND TESTING Distributors,
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 621.096. [1955 c.714 §8; 1999 c.197
§15]A producer, producer-distributor, distributor, nonprocessing
distributor or dairy products plant licensee shall not offer or expose
for sale, sell, exchange, deliver, 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 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 for recovery of the milk food solids. [1955 c.714
§10; 1957 c.346 §1; 1979 c.320 §3; 1999 c.197 §16]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. [Formerly 621.241]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. [Formerly 621.246](1) If a distributor,
producer-distributor or dairy products plant licensee fails to comply
with any provision of ORS 621.056, 621.057, 621.084, 621.092, 621.122 (7)
to (10) or 621.226 or regulations adopted under ORS 621.096, the State
Department of Agriculture may revoke the license or, with the written
consent of the distributor, producer-distributor or licensee, may perform
the weighing, sampling and testing of the milk or cream received or
purchased by the distributor, producer-distributor or licensee.
(2) The department shall employ competent personnel of its own
choice to perform the weighing, sampling or testing under subsection (1)
of this section. The salary and necessary expenses of the personnel shall
be paid by the department. The distributor, producer-distributor or
licensee shall reimburse the department for the salary and expenses
monthly.
(3) The department shall continue 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
the department is satisfied that the distributor, producer-distributor or
licensee is willing and able to comply with all the provisions of ORS
621.056, 621.057, 621.084, 621.092, 621.122 (7) to (10) and 621.226 and
regulations adopted under ORS 621.096. When the department is so
satisfied, control of the weighing, sampling and testing shall be
returned to the distributor, producer-distributor or licensee. [Formerly
621.251] (1)
The State Department of Agriculture shall promulgate regulations relating
to the weighing, sampling and testing of milk and cream.
(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. [Formerly 621.236]PROHIBITED ACTS, GENERALLYA person may not sell or distribute for sale unpasteurized milk or
fluid milk from cows, or dairy products from unpasteurized milk or fluid
milk from cows, other than to a distributor, producer-distributor, dairy
products plant licensee or nonprocessing cooperative. This section does
not apply to the sale or distribution of cheese otherwise exempt from
pasteurization requirements or to sales or distributions by a person
described under ORS 621.012. [1999 c.937 §2]A distributor,
producer-distributor or dairy products plant licensee shall not sell or
offer or expose for sale any dairy product or fluid milk for human
consumption unless the milk used in the dairy product or fluid milk has
been pasteurized or is goat or sheep’s milk that was produced by a
disease-free herd, except that if not more than one reactor animal
appears when the goat or sheep 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. If one or more reactor animals appear when the herd is
retested, no milk, dairy products or fluid milk from the herd may be sold
until the herd regains a brucellosis-free status. [1955 c.714 §9(3); 1957
c.346 §3; 1969 c.152 §5; 1975 c.299 §1; 1999 c.197 §20; 1999 c.937 §4](1) 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) A distributor, producer-distributor or dairy products plant
licensee shall not sell, offer or expose for sale any milk or cream that
has not been pasteurized or produced by a disease-free goat or sheep
herd, except to another distributor, producer-distributor or dairy
products plant licensee for the manufacture of milk, fluid milk or dairy
products.
(3) Except as permitted by ORS 621.003, 621.012, 621.060 and
621.076, a person shall not knowingly sell, offer or expose for sale any
milk or cream that has not been pasteurized or produced by a disease-free
goat or sheep herd, except to a distributor, producer-distributor or
dairy products plant licensee for the manufacture of milk, fluid milk or
dairy products.
(4) 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 from cows have been pasteurized and all milk or cream
constituents from goats or sheep were produced by a disease-free herd or
have been pasteurized.
(5) A person shall not knowingly sell, offer or expose for sale any
dairy product unless all of the milk or cream constituents of the product
from cows have been pasteurized and all constituents from goats or sheep
were produced by a disease-free herd or 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 that has been aged for at least 60 days from
the date of manufacture. The manufacture date must appear on the cheese
or its container.
(7) A person shall not falsely represent by word, design, device or
by any other means that any milk, cream, fluid milk, dairy product,
frozen dessert mix or frozen dessert has been pasteurized.
(8) A distributor, producer-distributor or dairy products plant
licensee must provide for the grading of all milk transported, received
or purchased by the distributor, producer-distributor or licensee as
required by ORS 621.056, 621.057, 621.084 and 621.226 and regulations
adopted under ORS 621.096.
(9) 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 621.203 or 621.226.
(10) 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.
(c) Make a false entry or record of the weight, or test of milk or
cream on any statement, record or invoice. [Formerly 621.286](1) A
person shall not sell or offer or expose for sale any fluid milk with
knowledge that the milk has been produced from a herd of cows, sheep or
goats, one or more of which were infected with brucellosis at the time
the milk was produced, or with knowledge that not all the animals in the
herd have 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.
[1957 c.346 §5 (enacted in lieu of 621.125); 1999 c.197 §23]DAIRY PRODUCTS PLANTSA person shall not operate a dairy products plant unless that
person has a valid dairy products plant license. A separate license is
required for each dairy products plant operated. A person is not required
to obtain a dairy products plant license to act as a milk hauler or to
operate receiving or transfer stations in conjunction with a milk
processing plant. [1953 c.686 §2; 1971 c.769 §4; 1999 c.197 §24](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 are personal and are not transferable.
(2) Each dairy products plant shall submit a separate fee
established by the department for each mobile milk tanker. The fee shall
not apply to a mobile milk tanker owned and operated by a dairy products
plant while transporting dairy products from the dairy products plant to
wholesale or retail outlets for those products. As used in this section,
“mobile milk tanker” means a tank or other receptacle that attaches to a
bulk tank truck or other equipment and is used to transport fluid milk,
milk or milk products.
(3) The department shall establish the license fee for a mobile
milk tanker in accordance with ORS chapter 183. The fee may not be less
than $25 or more than $50. Except as provided in subsection (4) of this
section, the fees for a dairy products plant are:
(a) $125 if the applicant’s annual gross dollar volume of sales and
services is not more than $50,000;
(b) $175 if an applicant’s annual gross dollar volume of sales and
services is more than $50,000 and not more than $500,000;
(c) $300 if an applicant’s annual gross dollar volume of sales and
services is more than $500,000 and not more than $1 million;
(d) $450 if an applicant’s annual gross dollar volume of sales and
services is more than $1 million and not more than $5 million;
(e) $600 if an applicant’s annual gross dollar volume of sales and
services is more than $5 million and not more than $10 million; or
(f) $750 if an applicant’s annual gross dollar volume of sales and
services is more than $10 million.
(4) The department shall increase the license fee amounts described
in subsection (3) 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 fee amounts
shall occur for the license year commencing July 1, 2006.
(5) In establishing the amount of the license fee for an applicant,
the department shall use the annual gross dollar volume of sales and
services by that applicant within Oregon during the prior calendar year
or, if the applicant maintains sales and service 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 or services for a full calendar year, the department
shall base the fee on estimated annual gross sales and services by the
applicant. If an applicant whose previous year’s fee was determined using
an estimated gross sales and services 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 and services by the
applicant. The license shall expire on June 30 next following the date of
issuance. [1953 c.686 §3; 1967 c.254 §2; 1971 c.769 §5; 1979 c.320 §6;
1982 s.s.1 c.4 §9; 1991 c.632 §5; 1999 c.197 §25; 2005 c.735 §11]Note: The amendments to 621.166 by section 12, 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.
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 are personal
and are not transferable.
(2) Each dairy products plant shall submit a separate fee
established by the department for each mobile milk tanker. The fee shall
not apply to a mobile milk tanker owned and operated by a dairy products
plant while transporting dairy products from the dairy products plant to
wholesale or retail outlets for those products. As used in this section,
“mobile milk tanker” means a tank or other receptacle that attaches to a
bulk tank truck or other equipment and is used to transport fluid milk,
milk or milk products.
(3) The department shall establish the license fee for a mobile
milk tanker in accordance with ORS chapter 183. The fee may not be less
than $25 or more than $50. The fees for a dairy products plant are:
(a) $135 if the applicant’s annual gross dollar volume of sales and
services is not more than $50,000;
(b) $189 if an applicant’s annual gross dollar volume of sales and
services is more than $50,000 and not more than $500,000;
(c) $325 if an applicant’s annual gross dollar volume of sales and
services is more than $500,000 and not more than $1 million;
(d) $487 if an applicant’s annual gross dollar volume of sales and
services is more than $1 million and not more than $5 million;
(e) $649 if an applicant’s annual gross dollar volume of sales and
services is more than $5 million and not more than $10 million; or
(f) $812 if an applicant’s annual gross dollar volume of sales and
services is more than $10 million.
(4) In establishing the amount of the license fee for an applicant,
the department shall use the annual gross dollar volume of sales and
services by that applicant within Oregon during the prior calendar year
or, if the applicant maintains sales and service 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 or services for a full calendar year, the department
shall base the fee on estimated annual gross sales and services by the
applicant. If an applicant whose previous year’s fee was determined using
an estimated gross sales and services 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 and services by the
applicant. The license shall expire on June 30 next following the date of
issuance. (1)
The State Department of Agriculture shall issue 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 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 621.056, 621.057, 621.092, 621.122, 621.183 and 621.198 and the
regulations promulgated under ORS 621.096 or 621.261. [1953 c.686 §4;
1999 c.197 §26]DISEASE AND CONTAMINATION PREVENTION To
ensure that the handling and processing of milk, fluid milk and dairy
products is conducted in a sanitary environment, 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 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. [1953 c.686 §5; 1999
c.197 §27]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, 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) 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. [1953 c.686 §6; 1999 c.197 §28]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. [1999 c.197 §4] The State
Department of Agriculture shall 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. The standards shall be for the purpose of 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. [1969 c.164 §2; 1999 c.197 §29](1) 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) 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.
[1969 c.164 §3; 1999 c.197 §30] (1) The
State Department of Agriculture shall condemn any container that it finds
unfit for use by reason of dirt, rust, open seams or any other condition
that may contaminate fluid milk, milk or dairy products or otherwise
render them unfit for human use or consumption. The department shall
provide by rule 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 that has been condemned by the department
and 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 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. [Formerly 621.661](1) A person other
than an authorized employee or agent of the State Department of
Agriculture shall not remove a condemnation tag or marking from a
container.
(2) A person shall not place any fluid milk, cream, milk or dairy
product in a container bearing a condemnation tag or marking.
(3) A person shall not use the contents of a container that has
been condemned to manufacture, process or bottle fluid milk, cream, milk
or dairy products. [Formerly 621.666] All fluid milk is subject to the same
bacterial standards as established by rule of the State Department of
Agriculture. [Formerly 621.077](1) Whenever a grader determines that any milk, cream, dairy
product or fluid milk is unlawful, the grader shall immediately affix a
condemnation tag to the milk, cream, dairy product or fluid milk
container. Condemnation tags shall be in a form prescribed by the State
Department of Agriculture. The grader shall also thoroughly mix
sufficient harmless red coloring matter with the condemned milk, cream,
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” means:
(a) Milk, cream, fluid milk or dairy product that contains dirt,
filth, oil or other foreign matter that may render the milk, cream, fluid
milk or dairy product, or dairy products derived from them, unfit for
human consumption.
(b) Milk, cream, fluid milk or dairy product that is stale, cheesy,
rancid, putrid, decomposed or actively foaming. [1953 c.686 §14; 1999
c.197 §34]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 is under the direct supervision of
a pasteurizer operator licensed under ORS 621.266. [Formerly 621.118]The State Department of Agriculture shall promulgate regulations
prescribing the equipment to be used in the pasteurization of dairy
products and the manner of cleaning and maintaining the equipment. When
the department authorizes the use of heat as a method of pasteurization,
it shall prescribe the necessary regulations for the use of recording
thermometers or other devices for determining the time and temperature
reached during the pasteurization process. [1953 c.686 §17] (1) Application for a
pasteurizer operator license shall be made to the State Department of
Agriculture on forms provided by the department. A license issued or
renewed by the department under this section may be restricted so as to
authorize the licensee to engage only in a limited line of activity
commensurate with the ability of the licensee.
(2) An applicant for original issuance of a license must pass a
reasonable written examination, give a practical demonstration of ability
to carry out licensee duties and pay the fee required by this section.
(3) A license issued under this section 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 shall be accompanied by
a nonrefundable fee determined by the department.
(4) The fee described in subsection (3) of this section shall be
established by the department in accordance with ORS chapter 183 and
shall not exceed $50.
(5) 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 a lifetime license in
effect, the licensee must submit a registration form to the department by
June 30 of each even-numbered year confirming the desire of the licensee
to continue the lifetime license. [1953 c.686 §23; 1963 c.48 §4; 1971
c.773 §10; 1979 c.320 §7; 1991 c.404 §2; 1999 c.197 §39](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 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 the additional
requirements. If, at the expiration of 60 days, the person licensed has
not demonstrated knowledge and ability in respect to the additional
requirements, the applicable license shall be suspended automatically.
[1953 c.686 §25; 1979 c.320 §13; 1999 c.197 §40](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 to perform specified analyses of milk and dairy
products. Certification shall be for those tests, analyses and methods
specified by the department and may be limited by the department to one
or more specific tests, methods or products.
(2) On or before July 1 of each year, a laboratory certified under
subsection (1) of this section shall pay a fee established by the
department not exceeding $100. [1971 c.769 §9; 1999 c.197 §43] The State
Department of Agriculture may approve the use of the Ring Test or the
Whey Test as alternatives to blood testing of milk producing animals for
brucellosis. [Formerly 621.020]ICE CREAM AND OTHER FROZEN DESSERTSAs 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. [1961 c.360 §2 (enacted in
lieu of 621.310); 1965 c.45 §2; 1985 c.286 §1; 1999 c.197 §44] (1)
Frozen desserts sold in package form or final delivery containers shall
be labeled 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.
(2) Packages and final delivery containers of frozen desserts that
are filled in the presence of the purchaser at retail 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 and contains all the information otherwise required to be on
the label. [Amended by 1953 c.684 §12; 1961 c.360 §3; 1969 c.152 §2; 1979
c.320 §9; 1999 c.197 §45](1) A person engaged in the business of freezing or
making frozen desserts and then selling those frozen desserts at
wholesale must obtain a license to carry on that business from the State
Department of Agriculture as provided in this section. The person must
obtain a separate license for each wholesale establishment operated by
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 at wholesale.
(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. [Amended by 1959 c.343 §2; 1967
c.254 §3; 1983 c.4 §10; 1999 c.197 §45a]A frozen dessert wholesaler shall not sell, offer for sale or
possess with intent to sell a frozen dessert or frozen dessert mix that
has an excessive bacteria count 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 bacteria count standards.
[Amended by 1953 c.684 §12; 1969 c.152 §3; 1999 c.197 §46]A person shall not sell or offer for sale any product 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 that frozen
dessert established by rule of the State Department of Agriculture
pursuant to ORS 621.311. [Amended by 1953 c.684 §12; 1999 c.197 §47] The State Department of Agriculture
may revoke a license issued pursuant to ORS 621.335 for a violation of
ORS 621.340 or 621.345 by the licensee. [1953 c.684 §12; 1999 c.197 §48]In any proceeding instituted for a
violation of ORS 621.340 in which possession with intent to sell a frozen
dessert or frozen dessert mix is an issue, possession by the accused of
frozen dessert or frozen dessert mix in containers of the size and type
commonly used by the accused in selling that product shall be prima facie
evidence of intent to sell. [1953 c.684 §12; 1999 c.197 §49]CONDENSED OR EVAPORATED MILK; IMITATION MILK AND DAIRY PRODUCT SUBSTITUTES
(1) A person shall not manufacture for sale, 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 the definitions and standards the department shall
take into consideration:
(a) Definitions and standards established in other states; and
(b) Definitions and standards 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. [Amended by 1975 c.304 §6; 1999 c.197 §50](1) 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, if
the milk used in the manufacture thereof is unlawful as defined under ORS
621.226.
(2) 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. [Amended by 1999 c.197 §51](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; and
(c) The degree of sanitation maintained for buildings, equipment
and personnel involved in the production, processing and distribution of
the product.
(3) A person shall not sell or offer for sale an imitation milk
product that does not conform to a standard of quality and identity
established by the department. [1969 c.149 §§3,4; 1999 c.197 §52; 2003
c.14 §373](1) A person
engaged in manufacturing, selling, offering for sale, advertising or
otherwise dealing in any product used or intended for use as a substitute
for or imitation of a dairy product or fluid milk shall not use a trade
or corporate name or product name, description, label, package,
container, advertising matter or sales literature employing the terms
“milk,” “butter,” “cream,” “creamery,” “churn,” “cheese,” “cow” or
“dairy” except in connection with imitation milk products.
(2) A person described in subsection (1) of this section shall not
use any pictorial or other representations resembling a dairy product or
fluid milk in or on the labels, packages, containers, advertising matter
or literature of a substitute or imitation product described in
subsection (1) of this section in a manner suggesting that the product is
made of milk.
(3) This section does not forbid a true statement concerning the
ingredients or composition of a product if the statement is not
misleading or in any way deceptive.
(4) Subsections (1) and (2) of this section 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. [Amended by 1963 c.165
§7; 1999 c.197 §53](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 cause the butter substitute to be
served:
(a) In triangular pats or triangular bricks; or
(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. [Amended by 1999 c.197 §54]STATE FACILITIES FOR TESTING MILK FAT CONTENT The State Department
of Agriculture shall establish and maintain procedures, systems and plans
to carry out and enforce the intent and purposes of ORS 621.730, 621.740
and 621.750. The department shall make department laboratory facilities,
equipment, materials and services available to producers and other
persons engaged in the milk industry for the official testing, retesting
or duplicate testing of milk for milk fat content by means of the
“Babcock Test” or any equally accurate and efficient test approved by the
department. [1965 c.474 §2; 1999 c.197 §57](1) Within the availability of funds to be
collected under ORS 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, 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) 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 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
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 the action shall be entitled to reasonable attorney fees at
trial and on appeal.
(4) The department may establish reasonable fees for enforcing and
carrying out this section and ORS 621.720, 621.740 and 621.750, in
amounts necessary to reimburse the department for the furnishing of
services and materials as required thereunder. [1965 c.474 §3; 1979 c.499
§24; 1981 c.897 §73; 1999 c.197 §58] (1) The producer or person
requesting official testing and related testing services from the State
Department of Agriculture, as authorized under ORS 621.730 and 621.750
shall pay the fees established under ORS 621.730 as provided by rule of
the department.
(2) If the producer or person requesting 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,
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 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 make the
deduction shall pay the itemized amount to the department.
(3) Subsection (2) of this section does not relieve the producer or
person requesting the services from being primarily responsible for
payment to the department. The department may take all actions necessary
to collect the amount due against the producer or person requesting the
services. [1965 c.474 §4; 1999 c.197 §59] The State
Department of Agriculture shall promulgate rules including but not
limited to the following:
(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 or purchaser. At the time 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 grader. The split
sample shall be forwarded by the dealer, handler or purchaser to the
department at the expense of the producer and as prescribed by rules of
the department. 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 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, 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.
(2) The department shall allow similar official testing for milk
fat to be made available to any other person subject to this chapter and
ORS chapter 583. [1965 c.474 §5; 1999 c.197 §60]PENALTIESViolation of any provision of ORS 621.056,
621.057, 621.062, 621.070, 621.072, 621.076, 621.084, 621.088, 621.117,
621.122, 621.124, 621.161, 621.166, 621.183, 621.198, 621.207, 621.226,
621.259, 621.335, 621.340, 621.345, 621.418, 621.445 or 621.730 or any
rule or standard adopted under ORS 621.060, 621.083, 621.096, 621.224 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. [1999 c.197 §5]
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