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2023 West Virginia Code › Chapter 19. Agriculture › Article 11. Bulk Milk Trade Law › §19-11-8. Prohibited Acts

(a) No person may have in his possession with the intent to sell, transport or manufacture any milk which is adulterated within the meaning of this article.
(b) No person may interfere with or prohibit the commissioner from performing the duties of his office.
(c) No person may fail to comply with the provisions of an embargo order issued under this article.
(d) No person may fail to comply with the provisions of a revocation, suspension or denial order issued under this article.
(e) No person who in any official capacity obtains any information under the provisions of this article that would be considered trade secrets regarding the quality, source and disposition of milk may use this information to his or her own personal gain.
(f) No person may purchase milk in this state on the basis of, or in any manner with reference to, the weight or measure or the amount of components in the product without a valid "permit for the purchase of milk" and may not establish the price on the basis of measurements or tests that have been performed in a dishonest, incompetent, or inaccurate manner, or falsify the records thereof.
(g) No person may weigh, measure, sample or test milk produced in this state for the purpose of establishing a purchase price of the product without a valid "milk tester license" and may not perform these duties in a dishonest, incompetent or inaccurate manner, falsify the records thereof, or use a testing method unless he has been certified to use that method.
(h) No person may weigh, measure or sample milk produced in this state for the purpose of establishing a purchase price of the product without a valid "milk weighers and samplers license" and may not perform these duties in a dishonest, incompetent manner or falsify the records thereof.
(i) No person may haul milk in or through this state in a tank truck that has previously been used to haul a chemical or foreign substance unless such tank truck has been cleaned and sanitized according to the rules promulgated by the commissioner prior to the hauling of such milk.
(j) No person may sell, offer for sale or expose for sale any milk that is from a herd that does not meet the requirements for animal health as set by rule under this article.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11. Bulk Milk Trade Law › §19-11-11. Hearings and Appeals

(a) Any person aggrieved by any action taken under this article shall be afforded the opportunity for a hearing before the commissioner under the rules promulgated by the commissioner.
(b) Hearings shall be conducted according to procedures set forth by rule.
(c) All the testimony and evidence at a hearing shall be recorded by mechanical means, which may include the use of tape recordings.
The mechanical record shall be maintained for ninety days from the date of the hearing and a transcript shall be made available to the aggrieved party.
(d) Any party who feels aggrieved of the suspension, revocation or denial order may appeal within sixty days to the circuit court of the county in which the person's principal place of business is located.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11. Bulk Milk Trade Law › §19-11-15. Confidentiality of Trade Secrets

The commissioner may not make public information which contains or relates to trade secrets, commercial or financial information obtained from a person or privileged or confidential information: Provided, That when revealing the information is necessary to carry out the provisions of this article, this information may be revealed, subject to a protective order, to any federal, state or local agency consultant; or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the commissioner.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-1. Purpose

Advances in food technology have resulted in the development of a variety of products of similar usage as standardized dairy products that are so similar in appearance, odor and taste that they are difficult to differentiate from dairy products. Therefore, it is the purpose of this article to regulate these products in addition to dairy products and to regulate their marketing, to protect, promote and preserve the public health and general welfare, to prevent fraud and deception in the manufacture and trade of products covered under this article, to establish labeling requirements and to establish standards of identity for dairy products and imitation dairy products intended primarily for human consumption.
Except where otherwise indicated, it is the intent of the Legislature that this article substantially conform with the federal regulations promulgated under the authority of the United States secretary of health and human services in order to provide for the movement of milk products, cheeses and frozen desserts and imitation dairy products in interstate and intrastate commerce with a minimum of economic barriers.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-3. Permits

(a) Permits are not transferable with respect to persons or locations.
(b) Application for all permits shall be made on forms supplied by the commissioner and shall provide such information as may be considered necessary by the commissioner.
(c) Permits shall be posted prominently at the place of operation.
(d) A dairy products distributors permit shall be issued by the commissioner to each person distributing dairy products in this state, even if there is no permanent location maintained in this state. Persons maintaining multiple permanent locations in this state or distributing into this state from several locations shall obtain a permit for each location. Application shall be made at least fifteen days before the date that the current permit expires or within fifteen days of the date that the person intends to engage in business. The application shall be accompanied by a fee of $15. A penalty of $2 shall be added to all permits that are not applied for or renewed within this time limit. Permits shall expire on March 31 following date of issue: Provided, That firms that have a permit with an expiration date of June 30, 1991, on the date of implementation of this article shall be allowed to make application for a dairy products permit for the period of July 1, 1991, through March 31, 1992, at a fee of $10.
(e) A dairy products distributors permit is not required for persons who distribute only aseptically processed and hermetically sealed dairy products or frozen desserts, dry dairy products or dry frozen dessert mixes.
(f) A temporary marketing permit may be issued by the commissioner for the marketing of dairy products that are not covered by an established standard. The temporary permit may be issued according to procedures established by rule. Persons applying for a temporary marketing permit shall have a valid dairy products distributors permit. There is no fee for the permit.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-4. Labeling

(a) All packages of dairy products or imitation dairy products shall have a label upon or affixed to the package. The label shall be legible and of a print size and style easily readable by the ordinary citizen. The information required in this section shall be on each label and shall be stated in English.
(b) The label shall contain the following information:
(1) The name of the product;
(2) The quantity of the contents;
(3) The name and address of the manufacturer, packer or distributor: Provided, That the manufacturer's plant code or name and address shall always appear on the label for Grade "A" products; and
(4) Such other information as the commissioner shall require by rule.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-5. Adulteration

Any dairy product or imitation dairy product referred to in this article is considered adulterated within the meaning of this article if it:
(a) Bears or contains any poisonous or deleterious substance or compound in a quantity which may render it injurious to health;
(b) Contains any coloring substance or flavoring matter that may be deleterious to health;
(c) Bears or contains any added poisonous or deleterious substance for which no safe tolerance has been established by state or federal law or regulation or which is found in the product in excess of an established tolerance;
(d) Does not meet the quality standards set forth in this article;
(e) Is or has been manufactured under conditions not in conformity with the provisions of this article;
(f) Is or has been produced, processed, prepared or held under unsanitary conditions;
(g) Has not been manufactured according to the provisions of the applicable standard of identity or that contains pathogens after manufacture;
(h) Is or has been stored in a package composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;
(i) Contains any substance added thereto or mixed or packed therewith so as to make it appear better or of greater value than it is; or
(j) Meets or has met other conditions of adulteration as established by rule.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-6. Misbranded

Any dairy product or imitation dairy product referred to in this article is considered misbranded within the meaning of this article if:
(a) It is labeled as a product for which there is a standard established by this article and it does not conform to such standards;
(b) Its label or labeling is false or misleading in any particular;
(c) It is not labeled in accordance with the requirements of this article;
(d) Any word, statement or other information required by this article to appear on the label or the 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 or understood by the ordinary person under customary conditions of purchase and use;
(e) Damage or inferiority has been concealed by any means; or
(f) It meets or has met other conditions of misbranding as established by rule.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-8. Approved Sampling and Testing Methods

(a) All sampling and testing methods shall be those set forth in the fifteenth edition of and supplement to the Official Methods of Analysis of the Association of Official Analytical Chemists, published by the Association of Official Analytical Chemists; or the fifteenth edition of the Standard Methods for the Examination of Dairy Products, published by the American Public Health Association, Inc.; or methods approved by the commissioner.
(b) The Babcock method or other methods approved by the commissioner for determining the milk fat content of dairy products shall be used as the reference method to establish and maintain the calibration of automated testing instruments.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-9. Approved Laboratories

(a) Each person who desires to have his laboratory approved by the commissioner for testing official dairy product or imitation dairy product samples as herein provided shall first satisfy the commissioner that tests to be made in such laboratory shall be conducted by qualified persons, with adequate facilities and that such tests are performed accurately and according to methods approved by the commissioner.
(b) For the purpose of determining whether a laboratory shall be designated as an approved laboratory the commissioner shall designate a qualified person or persons to inspect the laboratory, its equipment, facilities and personnel at the expense of the applying laboratory, and thereafter may have similar inspections made at the expense of the approved laboratory for the purpose of determining whether or not such approval should be continued.
(c) The commissioner may accept the test results of any laboratory that has been approved under this article: Provided, That the commissioner shall not accept the test results of any approved laboratory for samples manufactured, distributed or used by a firm the same as or related to the approved laboratory.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-11. Suspension, Revocation or Denial of Permits

(a) The commissioner may deny any application for a permit whenever said permit has been applied for fraudulently, the applicant has grossly interfered with the duties of the commissioner, or the applicant is determined to be not in compliance with or not able to comply with this article.
(b) The commissioner may suspend a permit whenever a health hazard exists or is believed to exist, the permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the permit holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with this article. Any person whose permit has been suspended shall immediately discontinue all operations covered under the permit. The commissioner may issue a summary suspension in cases where violations of this article constitute a hazard to the public health, safety or welfare or where the public interest requires immediate action.
(1) Except for summary suspensions, the commissioner shall give written notice to the persons affected of the pending suspension, stating that the suspension of the permit is being contemplated and giving reasons therefor. The suspension notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) All summary suspensions shall be followed by a notice of suspension, the reasons for the suspension, and an opportunity for a hearing in accordance with this article.
(3) At the end of the period of suspension, the permit holder may resume operations without reapplication for a permit.
(c) The commissioner may revoke any permit issued under this article whenever a health hazard exists, the permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with this article. Any person whose permit has been revoked shall immediately discontinue all operations covered under the permit.
(1) Before revoking any permit the commissioner shall give written notice to the persons affected, stating that the revocation of the permit is being contemplated and giving reasons for the revocation. The revocation notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) At the end of the period of revocation the permit will not be issued without an application, payment of required fee and the compliance with all conditions that the commissioner shall require for the reissuing of such permit.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-12. Hearings and Appeals

(a) Any person aggrieved by any action taken under this article shall be afforded the opportunity for a hearing before the commissioner under rules promulgated by the commissioner.
(b) Hearings shall be conducted according to procedures set forth by rule.
(c) All the testimony and evidence at a hearing shall be recorded by mechanical means, which may include the use of tape recordings. The mechanical record shall be maintained for ninety days from the date of the hearing and a transcript shall be made available to the aggrieved party.
(d) Any party who feels aggrieved of the suspension, revocation or denial order may appeal within sixty days to the circuit court of the county in which the person has located its principal place of business or to the circuit court of Kanawha County.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11A. Dairy Products and Imitation Dairy Products Law › §19-11A-16. Confidentiality of Trade Secrets

The commissioner may not make public information which contains or relates to trade secrets, commercial or financial information obtained from a person or privileged or confidential information: Provided, That when the information is necessary to carry out the provisions of this article, this information may be revealed, subject to a protective order, to any federal, state or local agency consultant or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the commissioner.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-1. Purpose

The legislative intent of this article is to protect, promote and preserve the public health and general welfare and to prevent fraud and deception in the manufacture, sale, offering for sale, exposing for sale, and possession with intent to sell, frozen desserts and products resembling frozen desserts for human consumption. Further, the Legislature recognizes that advances in food technology have resulted in the development of a variety of products of similar usage as standardized frozen desserts that are so similar in appearance, odor and taste that they are difficult to differentiate from frozen desserts. Therefore, this article shall regulate these products in addition to frozen desserts, establish definitions and standards for such foods or labeling requirements by rules which effect their orderly marketing and ensure similar sanitary standards for frozen desserts and imitation frozen desserts.
Except where otherwise indicated, it is the intent of the Legislature that this article substantially conform with the federal regulations promulgated under the authority of the United States secretary of health and human services in order to provide for the movement of frozen desserts and imitation frozen desserts in interstate and intrastate commerce with a minimum of economic barriers.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-3. Frozen Desserts Manufacturer Permit

(a) A "frozen desserts manufacturer permit" shall be issued to each manufacturer of frozen desserts or imitation frozen desserts. Permits shall be issued for each place of operation and shall not be transferable with respect to persons or locations. The permit may be applied to the operation of several freezers at one location. Each mobile unit shall be considered as operating at one location.
(b) Application shall be made on forms supplied by the commissioner and provide such information as may be considered necessary by the commissioner. Permits shall be applied for at least fifteen days before the date that the current permit expires or within fifteen days of the date that the person intends to engage in business. The application shall be accompanied by a fee of $20. A penalty of $2 shall be added to all permits that are not applied for or renewed within this time limit. The permits shall expire on March 31 following date of issue: Provided, That firms that have a permit with an expiration date of June 30, 1991, on the date of implementation of this article shall be allowed to make application for a frozen desserts manufacturer permit for the period of July 1, 1991, through the March 31, 1992, at a fee of $10.
(c) Permits shall be posted prominently at the place of operation.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-4. Labeling

(a) All packages of frozen desserts or imitation frozen desserts shall have a label upon or affixed to the package. The label shall be legible and of a print size and style easily readable by the ordinary citizen. The information required in this section shall be on each label and shall be stated in English.
(b) The label shall contain the following information:
(1) The name of the product;
(2) The quantity of the contents;
(3) The name and address of the manufacturer, packer or distributor; and
(4) Such other information as the commissioner shall establish by rule.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-5. Adulteration

Any frozen dessert or imitation frozen dessert referred to in this article is considered adulterated within the meaning of this article if it:
(a) Bears or contains any poisonous or deleterious substance or compound in a quantity which may render it injurious to health;
(b) Contains any coloring substance or flavoring matter that may be deleterious to health;
(c) Bears or contains any added poisonous or deleterious substance for which no safe tolerance has been established by state or federal law or regulation or in excess of an established tolerance;
(d) Does not meet the quality standards set forth in this article;
(e) Is or has been manufactured under conditions not in conformity with the provisions of this article;
(f) Is or has been produced, processed, prepared or held under unsanitary conditions;
(g) Is or has been stored in a package composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;
(h) Contains any substance added thereto or mixed or packed therewith so as to make it appear better or of greater value than it is; or
(i) Meets or has met other conditions of adulteration as established by rule.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-6. Misbranded

Any frozen dessert or imitation frozen dessert referred to in this article is considered misbranded within the meaning of this article if:
(a) It is labeled as a product for which there is a standard established by this article and it does not conform to such standards;
(b) Its label or labeling is false or misleading in any particular;
(c) It is not labeled in accordance with this article;
(d) Any word, statement or other information required by this article to appear on the label or the 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 or understood by the ordinary person under customary conditions of purchase and use;
(e) If damage or inferiority has been concealed by any means; or
(f) It meets or has met other conditions of misbranding as established by rule.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-8. Approved Sampling and Testing Methods

(a) All sampling and testing methods shall be those set forth in the fifteenth edition of and supplement to the Official Methods of Analysis of the Association of Official Analytical Chemists, published by the Association of Official Analytical Chemists; or the fifteenth edition of the Standard Methods for the Examination of Dairy Products, published by the American Public Health Association, Inc.; or methods approved by the commissioner as provided by rule.
(b) The Babcock method or other methods approved by the commissioner for determining the milk fat content of frozen desserts shall be used as the reference method to establish and maintain the calibration of automated testing instruments.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-9. Approved Laboratories

(a) Each person who desires to have his laboratory approved by the commissioner for testing official frozen dessert or imitation frozen dessert samples as provided in this section shall first satisfy the commissioner that tests to be made in such laboratory shall be conducted by qualified persons with adequate facilities and that such tests shall be performed accurately and according to approved methods.
(b) For the purpose of determining whether or not a laboratory shall be designated as an approved laboratory the commissioner shall designate a qualified person or persons to inspect the laboratory, its equipment, facilities and personnel at the expense of the applying laboratory, and thereafter may have similar inspections made at the expense of the applying laboratory for the purpose of determining whether or not such approval should be continued.
(c) The commissioner may accept the test results of any laboratory that has been approved under this article: Provided, That the commissioner shall not accept the test results of any approved laboratory for samples manufactured, distributed or used by a firm related to or owned by the approved laboratory.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-11. Suspension, Revocation or Denial of Permits

(a) The commissioner may deny any application for a permit whenever said permit has been applied for fraudulently, the applicant has grossly interfered with the duties of the commissioner or the applicant is determined to be not in compliance with or not able to comply with this article.
(b) The commissioner may suspend a permit whenever a health hazard exists or is believed to exist, said permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the permit holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with the provisions of this article. Any person whose permit has been suspended shall immediately discontinue all operations covered under the permit. The commissioner may issue a summary suspension in cases where violations of this article constitute a hazard to the public health, safety or welfare where the public interest requires immediate action.
(1) Except for summary suspensions, the commissioner shall give written notice to the persons affected of the pending suspension, stating that suspension of the permit is being contemplated and giving reasons therefor. The suspension notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) All summary suspensions shall be followed by a notice of suspension, the reasons for the suspension and an opportunity for a hearing in accordance with the provisions of this article.
(3) At the end of the period of suspension, the permit holder may resume operations without reapplication for a permit.
(c) The commissioner may revoke any permit issued under this article whenever a health hazard exists, the permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with this article. Any person whose permit has been revoked shall immediately discontinue all operations covered under the permit.
(1) Before revoking any permit, the commissioner shall give written notice to the persons affected, stating that revocation of the permit is being contemplated and giving reasons for the revocation. The revocation notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) At the end of the period of revocation, the permit will not be issued without an application, payment of the required fee and compliance with all conditions that the commissioner shall require for the reissuing of such permit.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-12. Hearings and Appeals

(a) Any person aggrieved by any action taken under this article shall be afforded the opportunity for a hearing before the commissioner under the rules promulgated by the commissioner.
(b) Hearings shall be conducted in accordance with procedures set forth by rule.
(c) All the testimony and evidence at a hearing shall be recorded by mechanical means, which may include the use of tape recordings. The mechanical record shall be maintained for ninety days from the date of the hearing and a transcript shall be made available to the aggrieved party.
(d) Any party who feels aggrieved of the suspension, revocation or denial order may appeal within sixty days to the circuit court of the county in which the person has located its principal place of business.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11B. Frozen Desserts and Imitation Frozen Desserts Law › §19-11B-16. Confidentiality of Trade Secrets

The commissioner may not make public information which contains or relates to trade secrets, commercial or financial information obtained from a person or privileged or confidential information: Provided, That when the information is necessary to carry out the provisions of this article, this information may be revealed, subject to a protective order, to any federal, state or local agency consultant or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the commissioner.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11C. Southern Dairy Compact › §19-11C-3. Appointment of Delegation

There shall be five delegates from this state to the compact commission, and these delegates shall be appointed by the commissioner of agriculture. At least one of the delegates shall be a dairy farmer who is engaged in the production of milk at the time of appointment or reappointment, at least one delegate shall be a consumer representative, one delegate shall be a processor, one delegate shall be a retailer representative from a border county and one delegate at large. Delegates shall serve for a term of four years. Vacancies in the state delegation will be filled in the same manner as the appointment of delegates, and shall be for the term of the position vacated.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11D. Traditional Cheese Production › §19-11D-1. Legislative Findings

The Legislature finds that local production and sale of locally manufactured cheese products is a culturally significant tradition and that the preservation of historic methods of cheese production is in the public interest; that local cheese production is an important part of the economic livelihood of many families and small businesses in this state; and that the unique quality of home and farm-based cheese products cannot be duplicated using manufacturing and food production requirements enforced by local boards of health. Therefore, the Legislature finds that it is in the public interest to exempt certain local cheese production and local cheese products from regulations of the division of health related to food sanitation enforced by local boards of health, and to place the production of certain home and farm-based cheese products under the jurisdiction of the Department of Agriculture.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11D. Traditional Cheese Production › §19-11D-2. Application of Article

(a) In order for cheese production to fall within the exemption created in section two of this article, all of the following criteria must apply:
(1) The cheese must be manufactured at a home or farm-based site using either raw milk from West Virginia cows, production of which is regulated by the Department of Agriculture, or commercially pasteurized cow's milk;
(2) The cheese products must be aged at least sixty days;
(3) The cheese products must be sold directly to the consumer at the production site or marketed in local restaurants or local small businesses not engaged in interstate commerce: Provided, That for the purposes of this article, acceptance of a national credit card shall not be construed as engaging in interstate commerce.
(b) The exemptions contained in this article are not applicable to:
(1) Persons and businesses manufacturing more than five thousand pounds of cheese products per year;
(2) Cheese products sold to the ultimate consumer outside the borders of the state;
(3) Cheese products marketed by mail or on the Internet; or
(4) Cheese products the sale or manufacture of which is governed by applicable federal law.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11D. Traditional Cheese Production › §19-11D-3. Exemption From Regulatory Control; Authorizing Rules by the Commissioner of Agriculture

The manufacture of cheese products described in section two of this article is exempt from: (a) Pasteurization, packaging, labeling and all other health related requirements established in this code or rules promulgated by the division of health; and (b) regulatory control by the division of health and county or local health departments or sanitarians. Powers of the commissioner of agriculture set forth in section ten, article eleven-a of this chapter are applicable to the manufacturing of home and farm-based cheese products described in section two of this article. The commissioner of agriculture is authorized to promulgate rules pursuant to article three, chapter twenty-nine-a of this code, considering and promoting traditional methods of cheese production, while providing minimum health and sanitation standards necessary for the protection of the public, including standards for cleanliness, handling, and protection from contamination. Emergency rules for this purpose are authorized.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-1. Purpose and Scope

In 2018, the Legislature created the Joint Task Force on Milk Rules and Regulations in response to concerns about current regulation of the dairy industry in West Virginia. The Joint Task Force heard from, and collected data and other information from, dairy farmers, industry representatives, and regulators from West Virginia, other states, and the federal government. Following its review of the collected information, the Joint Task Force concluded that potential benefits and economies of scale would best be realized by transferring some or all authority to promulgate milk rules and regulations from the Department of Health and Human Resources to the Department of Agriculture.
It is the purpose of this article to establish the authority of the West Virginia Department of Agriculture to regulate milk and milk products within the state. It is the further purpose of this article to ensure that milk and milk products produced, manufactured, or sold in West Virginia are safe, while also ensuring that regulation is done in such a way as to foster the stability and growth of the dairy industry in West Virginia.
It is the intent of the Legislature that this article regulate the production, transportation, and sale of milk and milk products; confer powers and impose duties upon the Commissioner of Agriculture; prescribe penalties; and provide for the enforcement thereof.
Furthermore, except where otherwise indicated, it is the intent of the Legislature that this article substantially conform with the federal regulations promulgated under the authority of the United States Secretary of Health and Human Services in order to provide for the movement of milk and milk products in interstate and intrastate commerce with a minimum of economic barriers.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-2. Definitions

"Adulterated" means milk or the products manufactured from milk meeting one or several of the conditions listed in §19-11E-7 of this code.
"Clean" means the condition where no residue remains on a surface that will, or is likely to, cause adulteration or other contamination.
"Commissioner" means the Commissioner of Agriculture of the State of West Virginia or his or her duly authorized agent.
"Distribute" means the act of transporting, holding for sale, offering for sale, selling, bartering, parceling out, giving, or otherwise disposing of milk.
"Embargo" means an order to withdraw milk from distribution. An embargo shall detain such milk or milk product and prohibit the transportation or distribution of milk as provided in §19-11E-8 of this code.
"Manufacture" means pasteurizing, ultrapasteurizing, formulating, or compounding milk; or packaging or preparing said product for distribution; or other methods of preparing milk for consumption.
"Milk" means the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy mammals. The term may include the components of milk, including cream. For purposes of this article, the term "milk" does not include raw milk.
"Milk producer" means any person who operates a dairy farm and who provides, sells, or offers milk for sale.
"Person" means any individual, partnership, association, fiduciary, firm, company, corporation, or any organized group of persons whether incorporated or not. The term "person" extends to the agents, servants, officers, and employees of the person.
"Receiving station" means any place, premises, or establishment where milk in unpackaged form is received, collected, handled, stored, or cooled and prepared for further transporting.
"Transport" means the movement of milk or milk products from one facility to another in a manner that maintains adequate temperatures and protects the product from freezing temperatures, exposure to the sun, and from sources of contamination.
"Transfer station" means any place, premises, or establishment where milk is transferred directly from one transport tank to another.
"Transport tank" means any tank which is used for the pickup of milk or the transportation of milk to or from any milk producer, dairy plant, receiving station, or transfer station.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-3. Department to Regulate Milk and Milk Products

Effective July 1, 2019, the Department of Agriculture shall be responsible for regulating all matters addressed in the Grade "A" Pasteurized Milk Ordinance issued by the federal Food and Drug Administration. This includes, but is not limited to, inspection of milk production facilities, inspection of facilities making single-use containers for dairy products, collection and testing of milk samples, and training and certification of inspectors.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-4. Milk Producer Permits

(a) A person may not sell milk, milk products, or manufactured dairy products within this state without having a current, valid permit from the Commissioner of Agriculture.
(b) A separate permit shall be obtained for each milk plant, milk producer, milk distributor, receiving station, transfer station, bulk tank unit, and milk tank truck cleaning facility.
(c) Permits are not transferable with respect to persons or locations.
(d) Permits shall be applied for at least 30 days before the date that the current permit expires or within 30 days of the date that the person intends to engage in business. Applications for all permits shall be made on forms supplied by the commissioner and provide such information as may be considered reasonably necessary by the commissioner. All applications shall be accompanied by an application fee. A penalty shall be added to all permits that are not applied for or renewed within the time limits set forth in this subsection.
(e) Permits shall be posted prominently at the place of operation.
(f) Within 30 days of receiving a complete application for an initial permit, the commissioner will inspect the applicants operation to determine whether it meets the standards set forth by this code and rules promulgated pursuant thereto that would be applicable if the applicant received the permit applied for. If the applicant satisfies those requirements, the commissioner shall issue the permit.
(g) Permits shall be valid for one year.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-5. Licenses

(a) Licenses shall be issued by the commissioner to certified inspectors of milk production facilities. Licenses are not transferable.
(b) Applications for licenses shall be made on forms supplied by the commissioner and shall provide such information as may be considered reasonably necessary by the commissioner for the administration of this article.
(c) Licenses shall expire on June 30 following the date of issue. License renewals shall be applied for at least 15 days previous to the date when the current license expires. The commissioner may assess a penalty for licenses that are not applied for or renewed within this time limit.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-6. Labeling

(a) All packages of milk or milk products shall have a label upon or affixed to the package. The label shall be legible and of a print size and style easily readable by the ordinary citizen. The information required in this section shall be on each label and shall be stated in English.
(b) The label shall contain the following information:
(1) The name of the product;
(2) The quantity of the contents;
(3) The name and address of the manufacturer, packer, or distributor: Provided, That the manufacturers plant code or name and address shall always appear on the label for Grade "A" products; and
(4) Such other information as the commissioner shall require by rule.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-7. Adulteration

Any milk or any milk products are considered adulterated within the meaning of this article if:
(1) They bear or contain any poisonous or deleterious substance or compound in a quantity which may render it injurious to health;
(2) They bear or contain any added poisonous or deleterious substance for which no safe tolerance has been established by state or federal law or regulation or which is found in the product in excess of an established tolerance;
(3) They are or have been produced, transported, or held under unsanitary conditions;
(4) They contain any substance added thereto so as to make them appear better or of a greater value than they are; or
(5) They meet or have met other conditions of adulteration as established by rule.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-9. Prohibited Acts

No person may:
(1) Have in his or her possession with the intent to sell, transport, or manufacture any milk which is adulterated within the meaning of this article;
(2) Interfere with or prohibit the commissioner from performing the duties of his or her office;
(3) Fail to comply with the provisions of an embargo order issued under this article;
(4) Fail to comply with the provisions of a revocation, suspension, or denial order issued under this article;
(5) While operating in any official capacity, obtain any information under the provisions of this article that would be considered trade secrets regarding the quality, source, and disposition of milk, and use this information for his or her own personal gain;
(6) Sell milk or milk products, where required, without a valid permit as required by the provisions of this article;
(7) Conduct inspections of milk production facilities for the purpose of certifying compliance with this article without a valid inspector license, and perform those duties in a dishonest or incompetent manner, or falsify the records thereof;
(8) Sell, offer for sale, or expose for sale any milk that is from a herd that does not meet the requirements for animal health as set by rule under this article;
(9) Represent an imitation dairy product to be a milk product;
(10) Conduct a test to determine the identity, quality, purity, grade, or quantity of a dairy product in a manner that is not in accordance with the Pasteurized Milk Ordinance; or
(11) Alter or destroy the results of a test conducted to determine the identity, quality, purity, grade, or quantity of a dairy product.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-11. Hearings and Appeals

(a) Any person aggrieved by any action taken under this article shall have the opportunity for a hearing before the commissioner under the rules promulgated by the commissioner.
(b) Hearings shall be conducted according to procedures set forth by rule.
(c) All the testimony and evidence at a hearing shall be recorded by mechanical means, which may include the use of tape recordings. The mechanical record shall be maintained for 90 days from the date of the hearing and a transcript shall be made available to the aggrieved party.
(d) Any party who feels aggrieved of the suspension, revocation, or denial order may appeal within 60 days to the circuit court of the county in which the persons principal place of business is located.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-15. Confidentiality of Trade Secrets

The commissioner may not make public information which contains or relates to trade secrets, commercial, or financial information obtained from a person, or privileged or confidential information: Provided, That when revealing the information is necessary to carry out the provisions of this article, this information may be revealed, subject to a protective order, to any federal, state, or local agency consultant; or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the commissioner.
2023 West Virginia Code › Chapter 19. Agriculture › Article 11E. Milk and Milk Products › §19-11E-16. Dairy Advisory Board

(a) The commissioner shall establish a Dairy Advisory Board within the Department of Agriculture. The purpose of that board is to advise the commissioner with respect to the status of the dairy industry in West Virginia, obstacles to manufacture, processing, and sale of milk and milk products, recommendations with respect to changes in statutes and regulation, changes in technology and processes utilized by the dairy industry, and other hindrances to growth of the industry in West Virginia.
(b) The commissioner shall, by rule, establish minimum requirements and qualifications for the members of the advisory board.