Section 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.