2023 New York Laws › AGM - Agriculture and Markets › Article 4-A - Frozen Desserts › 71-A - Declaration of Policy.

§ 71-a. Declaration of policy. 1. It is hereby declared that the dairy
industry  is  a  paramount  industry  of  the  state and the production,
processing, packaging, distribution and sale of frozen  desserts  is  an
important  segment  of  the  dairy  industry  and  is  of  vast economic
importance to the state and of vital importance to the consuming  public
of  the state, and which should be encouraged and promoted in the public
interest. It is further declared to be in  the  interest  of  the  dairy
industry  and  of  the  consuming  public  that  there  be uniformity of
standards for frozen desserts as between  the  various  states  and  the
federal  government to the end that there may be free movement of frozen
desserts between the states  and  to  the  end  that  the  inefficiency,
needless  expense,  and confusion caused by differences in products sold
under the same name, and differences in labeling of  identical  products
may  be  eliminated.  Regulations  pertaining  to sanitary requirements,
production, processing, all labeling requirements, and  distribution  of
frozen  desserts  products which are uniform and uniformily enforced are
essential for the protection of consumers and the economic well being of
the dairy industry.  It  is  further  declared  that  advances  in  food
technology  have  resulted  in  the  development  of products similar to
frozen desserts,  including  such  products  having  a  lower  butterfat
content  and  products  made  with oils or fats other than butterfat and
with solids not fat from sources other than dairy products and that such
products are recognized as wholesome and nutritious  articles  of  food;
that  such  products  are  similar  in appearance, odor or taste and are
difficult  to  differentiate  from  frozen  desserts  made  with   dairy
products.  It  is  further declared to be the purpose of this article to
promote honesty and fair dealing in the interest of consumers, to insure
fair competition as between the manufacturers and  distributors  of  the
different products and to prevent confusion and deception in the sale of
all  such products by establishing definitions and standards of identity
for such products, to eliminate needless duplication of  inspection  and
conflicting  and  diverse  requirements  by  various  agencies,  and  by
providing for rules and regulations  which  will  effect  their  orderly
marketing and insure uniform sanitary standards and enforcement.
2.  For  the purpose of this article and for any rules and regulations
promulgated pursuant thereto, the term "frozen desserts" shall be deemed
to include ice cream, frozen custard, French ice cream,  French  custard
ice  cream,  artificially  sweetened  ice  cream, ice milk, freezer made
shakes,  fruit  sherbert,  water  ice,  quiescently  frozen  confection,
quiescently  frozen  dairy confection, manufactured desserts mix, frozen
confection, mellorine frozen dessert as all such products  are  commonly
known,  together  with  any  mix  used  in such frozen desserts, and any
products which  are  similar  in  appearance,  odor  or  taste  to  such
products,  or  are prepared or frozen as frozen desserts are customarily
prepared or frozen,  whether  made  with  dairy  products  or  non-dairy
products.
3.  a.  "Person"  means  and  includes  any individual, copartnership,
corporation,  cooperative  association,  cooperative   corporation,   or
unincorporated association.
b.  "Plant"  means  any  single  location or mobile manufacturing unit
which manufactures frozen desserts.
4. Rules and regulations. (a) The  commissioner  shall,  after  public
hearing,  promulgate  definitions  and  standards  for  frozen  desserts
including those made with dairy products,  those  not  made  with  dairy
products  and  those  which  are similar in appearance, odor or taste to
such  products  or  are  prepared  or  frozen  as  frozen  desserts  are
customarily  prepared or frozen, together with rules and regulations for
the packaging and all labeling requirements for all such  products,  and

other  conditions  relating  to  the  wholesale manufacture, processing,
packaging, distribution and sale at  wholesale  of  all  such  products;
including,  but  not limited to, sanitization pertaining to manufacture,
processing,   handling,  distribution,  buildings,  grounds,  equipment,
personnel and pasteurization or heat treatment  of  frozen  desserts  or
ingredients.  No  municipality  or  county  may impose any regulation or
standard for frozen desserts different from those provided herein or  by
regulations promulgated hereunder. No municipality or county may require
the  inspection  of  frozen  dessert plants beyond its borders and shall
accept the certification of the commissioner that such plants conform to
this act and the rules and  regulations  promulgated  hereunder,  unless
there  is  substantial  reason  to believe that a manufacturer of frozen
desserts, offered for sale in such county or  municipality,  is  not  in
substantial  compliance  with  the  requirements  of this article or the
regulations promulgated pursuant thereto.
(b) Following any hearing to consider  definitions  and  standards  or
rules and regulations, pursuant to paragraph (a) of this subsection, the
commissioner  shall  issue  a  recommended  decision  and  shall  afford
interested parties an opportunity to file exceptions to such recommended
decision based  upon  the  facts  in  the  hearing  record.  After  full
consideration  has been given to such exceptions, a final decision shall
be made.
(c) No person shall manufacture, distribute or sell in  this  state  a
frozen  dessert  for  which  a  definition  and  standard  has  not been
promulgated pursuant to this article.
(d) Any person who desires to manufacture, distribute or sell in  this
state,  any  frozen  dessert for which a definition and standard has not
been promulgated by the commissioner pursuant  to  this  section,  shall
first  make  application  to  the commissioner for the promulgation of a
definition  and  standard  for  such  proposed  frozen   dessert.   Such
application  shall  include  the  essential  details  of  such  proposed
definition and standard. Upon the receipt of such  an  application,  the
commissioner  shall call a public hearing for the purpose of considering
such proposed definition and standard. In  determining  whether  or  not
such   proposed  definition  and  standard  shall  be  promulgated,  the
commissioner shall consider, among other things, the following:
1. Is the proposed product a frozen dessert as  provided  pursuant  to
the provisions of subdivision two of this section?
2.  Is  the proposed frozen dessert substantially different from other
frozen desserts for which definitions and standards  have  already  been
promulgated by the commissioner?
3. Is it in the public interest to promulgate such proposed definition
and standard?
4.  Will  the promulgation of such proposed definition and standard be
advantageous to consumers  and  not  result  in  a  lowering  of  health
standards or promote fraud and deception?
Following  the  hearing  to  consider  any  such proposed definition and
standard,  the  commissioner  shall  issue  a  recommended  decision  as
provided  pursuant to paragraph (b) of subdivision four of this section,
either adopting, modifying,  or  denying  the  proposed  definition  and
standard,  giving  interested parties an opportunity to file exceptions,
within thirty days, to such recommended decision based upon the facts in
the hearing record, and after full consideration has been given  to  any
such exceptions, a final decision shall be made.