2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-8. Authority and Duties of the Commissioner

The commissioner has the power and duty to:
(1) Propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code, including adopting with any necessary modifications the Grade "A" Pasteurized Milk Ordinance promulgated by the Food and Drug Administration;
(2) Adopt, promulgate, and enforce other rules for legislative approval in accordance with §29A-3-1 et seq. of this code as necessary to carry out the purpose of this article;
(3) Have access to and enter at all reasonable times all places where frozen desserts or imitation frozen desserts are manufactured, stored, held, transported, distributed, or used in the state and where records, papers, or documents relating to these transactions are kept;
(4) Inspect and photograph all places where milk is manufactured, packaged, stored, held, transported, or distributed; inspect, audit, and copy records and papers relating to the manufacturing, distribution, sampling, testing, and sale of milk; examine measuring and testing apparatus; and examine equipment used in manufacturing and transportation of milk;
(5) Sample milk, including, but not limited to, ingredients and packages that are used in the manufacture of these products and may open any package containing or believed to contain any milk or milk product or an ingredient to be used in the manufacture of milk or a milk product for the purpose of inspecting and sampling;
(6) Issue, suspend, revoke, or deny permits;
(7) Collect fees and expend moneys under the terms of this article;
(8) Collect evidence, including samples, of the condition of equipment, holding tanks, storage rooms, and vehicles used, or intended to be used, in the processing, packaging, transporting, or holding of milk or milk products;
(9) Examine the labels and labeling of milk and milk products;
(10) Issue embargoes for any milk or milk product which is or is believed to be adulterated, misbranded, or that is not in compliance with this article and to cause the manufacturing and distributing of same to cease: Provided, That nothing in this article may be construed as requiring the commissioner to issue embargoes for minor violations of this article when he or she believes that a written notice of violation will serve the public interest:
(A) When an embargo is issued, the commissioner shall affix to such product or manufacturing device in an appropriate manner a tag or other marking giving warning that such product is under embargo;
(B) The commissioner shall give written notice to the custodian of the product or process under embargo describing the violation and stating that the product is prohibited from being sold, offered for sale, exposed for sale, or distributed and is ordered to be held on the premises and, further, that all manufacturing processes for this product shall cease until the embargo is released. This notice shall notify the custodian of the right to request an immediate hearing under the rules adopted by the commissioner;
(C) The commissioner shall take action to seize and condemn any product that cannot be brought into compliance with this article and the rules issued under same within 90 days of notice to the custodian of the product;
(D) The commissioner may issue an embargo against a perishable product even if the practical result is to bring about the involuntary disposal of the product. The commissioner shall exercise this power using all reasonable means to determine if the product is adulterated or otherwise not in compliance with this article in as short a time frame as possible and shall promptly lift the embargo order if the product is found to be in compliance with this article;
(11) Approve sampling and testing methods, and evaluate and approve official laboratories;
(12) Obtain from any state court an order directing any person to submit to inspection and sampling subsequent to the refusal of any person to allow inspection and sampling;
(13) Conduct hearings as provided by this article; and
(14) Assess civil penalties and refer violations to a court of competent jurisdiction: Provided, That the commissioner is not required to report for prosecution minor violations of the article when he or she believes that the public interest will be best served by a suitable notice in writing.