CHAPTER 92 - STATE BOARD OF AGRICULTURE

AN ACT TO AMEND CHAPTER 36, VOLUME 25, LAWS OF DELAWARE, ENTITLED "AN ACT PROVIDING FOR THE PROTECTION OF THE PUBLIC HEALTH, AND THE PREVENTION OF FRAUD AND DECEPTION, BY REGULATING THE WEIGHING, TESTING, BUYING AND SELLING OF MILK AND CREAM; PROVIDING FOR THE EXAMINATION AND APPOINTMENT OF CERTIFIED TESTERS, AND THE ISSUING OF LICENSES AND MAKING OF TESTS; AND PROVIDING PENALTIES."

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That every creamery, shipping station, milk factory, cheese factory, ice cream factory, or milk condensary, or person receiving, buying and paying for milk or cream regardless of the method of settlement shall be required to hold a permit for each and every place where milk or cream is received by weight or measure: Provided, however, that nothing in this act shall apply to individuals buying milk or cream for private use, or to producers buying milk in emergencies to make up their regular supply, or to persons buying from dealers already holding a permit, or to hotels, restaurants, boarding houses, railroad dining cars, retail stores, or drug stores. The permit shall be issued by the State Board of Agriculture to such creamery, shipping station, milk factory, cheese factory, ice cream factory, or milk condensary, or person upon the filing of such information as may be required by the State Board of Agriculture. The permit shall be valid for a term of one calendar year and may be revoked by the State Board of Agriculture for any violation of the provisions of this act. This permit issued hereunder shall be posted in plain view in the station for which it is issued.

Section 2. It shall be unlawful for any person, association, copartnership, or corporation, their agents or servants engaged in the business of buying milk or cream on the basis of or in any manner with reference to the amount or percentage of butterfat contained therein, to take, collect or use for testing purposes an unfair or an inaccurate sample, to under-read, over-read or erroneously manipulate the test commonly known as the "Babcock test" used for determining the percentage of such fat in said milk or cream, or to falsify the record thereof, or to make the "Babcock" reading except when the fat has a temperature of one hundred thirty-five degrees to one hundred forty-five degrees Fahrenheit, or to use for such test quantities other than seventeen and six-tenths (17.6) cubic centimeters in the case of milk and nine (9) grams or eighteen (18) grams in the case of cream. In all tests of cream, the cream shall be weighed and not measured into the test bottle.

Section 3. No person, association, copartnership, or corporation purchasing milk or cream and paying for the same on the basis of the percentage of butterfat contained therein shall, if the percentage of butterfat is ascertained by the said ''Babcock test", use any test glassware except standard Babcock test glassware and weights which have been previously inspected and approved by the State Board of Agriculture. If the proportion of butterfat is determined by any method other than the "Babcock test" no utensil or instrument shall be used in such determination until the same has been inspected and approved by the State Board of Agriculture.

Section 4. Every person, association, copartnership, corporation, or agent or servant thereof engaged in the business of receiving or buying milk or cream on the basis of or in any way with reference to the amount of butterfat contained therein, or tests made for official inspection or public records as determined by the "Babcock test" shall have the test or tests made only by a licensed tester who shall be responsible for the same and who shall keep a proper and permanent record of all tests made and a copy of such record shall be kept by the owner or manager of the plant. For the purpose of this act, a licensed tester is any person who, having furnished satisfactory evidence of good character and having passed a satisfactory examination in milk and cream testing conducted by the State Board of Agriculture or its agents, shall have received a certificate of proficiency from the said department. Each applicant for examination for such certificate shall pay a fee of three dollars ($3.00) to the State Board of Agriculture or its agents. The said State Board of Agriculture shall issue such certificate of proficiency in the name of the approved applicant and under serial number. The State Board of Agriculture upon receipt of this certificate of proficiency, together with the payment of a fee of three dollars ($3.00), shall issue a license to said applicant good for one calendar year. This license shall be renewed annually without further examination at the discretion of the State Board of Agriculture upon the payment of a fee of three dollars. Each certified tester shall post his or her license in plain view in the testing room in which he or she is employed. The State Board of Agriculture shall revoke said license for failure to post it as above required or for any other just cause.

Section 5. Every person, association, copartnership, or corporation engaged in the business of buying milk or cream on the basis of or in any way with reference to the amount of butterfat contained therein or tests made for official inspection or public record, shall have the samples taken for testing purposes either by a licensed tester or by a person licensed or certified to weigh and sample milk and cream. For the purpose of this act a person certified to weigh and sample milk or cream is any person, who having furnished satisfactory evidence of good character and having passed a satisfactory examination in weighing and sampling milk and cream conducted by the State Board of Agriculture or its agents, shall have received a certificate of proficiency from said department. Each applicant for such examination for such certificate shall pay a fee of one dollar and fifty cents ($1.50) to said department. The said department shall issue such certificate of proficiency in the name of the approved applicant and under serial number. The State Board of Agriculture upon receipt of this certificate of proficiency, together with the payment of a fee of three dollars ($3.00), shall issue a license to said applicant good for one calendar year. This license shall be renewed annually without further examination at the discretion of the State Board of Agriculture upon the payment of three dollars ($3.00). Each licensed weigher and sampler shall post his or her license in plain view in the plant in which he or she is employed. The State Board of Agriculture may revoke said license for failure to post it as above mentioned or for any other just cause.

Section 6. Any person, association, copartnership, corporation, or agents or servants thereof engaged in the business of buying milk or cream on the basis of or in any way with reference to the amount or percentage of butterfat contained therein as determined by the "Babcock test" shall make such test at least once every sixteen days. The milk or cream purchased from each person shall be represented by a composite sample taken from the entire delivery of each of the several lots of milk or cream bought from said person and shall cover a period of not more than sixteen days. The composite sample to which a suitable preservative has been added shall be made up of aliquot parts taken from each of the several lots of milk or cream bought from each person concerned, and composite samples of all persons concerned shall cover the same period of time. Any person taking a sample or samples of milk or cream, either from the aliquot part of each lot of milk sampled or from the composite lot of milk or cream sampled, shall adopt such measures and use such procedure as will insure the obtaining of accurate samples representing in each case the entire amount of the milk or cream from which the sample is taken. No weigh tank or container from which the aliquot part is taken for composite samples shall have any partition, division or strainer which may divide in any way into more than one compartment the volume of milk from which the sample is taken. Each composite sample shall be held in an air tight bottle--such bottle being plainly labeled showing the name or number of the person whose milk or cream the composite sample represents--and the rack or container where the samples are held shall be plainly labeled showing the date of the first and last day of the period covered by the said composite samples. The State Board of Agriculture may require that the composite samples be tested on the premises where they are taken whenever in its judgment such action is for the public welfare. After such samples have been tested their residues shall be held intact and in condition suitable to test on the premises where they are tested for a further period of not less than ten days in order to make possible a check test. The State Board of Agriculture, or its agents, are hereby authorized to make such tests whenever in their judgment such tests are advisable for the public welfare. Every person, firm, or corporation affected by the provisions of this act shall within five days after the day on which the test herein provided for has been made notify the seller of such milk or cream or his agent, in writing or by individual printed statement of the result of such test, stating the period of time during which said composite samples were taken. Where a daily test is made on milk or cream and the average of these several tests used as a basis of settlement there shall also be a composite sample taken covering a period of first and last half of month and shall be held intact on the premises for a period of not less than ten days, in order that the State Board of Agriculture or its agents may make check tests whenever in their judgment such tests are advisable for the public welfare.

Section 7. No percentage of fat ascertained from a sample containing milk or cream that has been so treated as to cause it to test lower or higher than the test of the milk or cream from which it was taken shall be used as a basis of payment for milk or cream purchased or sold.

Section 8. No person, association, copartnership, or corporation purchasing or selling milk or cream or both by weight or measure or butterfat test, and no agent or servant of any such person, association, copartnership, or corporation shall use as a basis of payment for such purchase any weight or measure or butterfat test other than the approved weight or measure of butterfat test of the milk or cream purchased or sold.

Section 9. Every person, association, copartnership, corporation or agent or servant purchasing or receiving milk or cream from the producer thereof for manufacturing purposes or for reselling the same shall, at each time of payment to such producer for such milk or cream, or where the producer of such milk or cream is selling the same to such purchaser or receiver by or through cooperative association or other agency and the payment thereof is being made by such purchaser or receiver to such co-operative or other agency shall at the time such purchaser or receiver makes each payment to such co-operative association or other agency, give each such producer so delivering milk a statement showing the amount delivered daily during the time for which payment is made and the average per centum butterfat test of same, provided payment is made on the basis of the butterfat content--such statement to contain the name or number of the producer or seller of such milk or cream, the date of delivery thereof, and the amount so delivered; such statement to be given in the terms of the unit used as a basis for determining the value thereof; Provided, however, that such purchaser or receiver may in lieu of said monthly statement of weights give daily to such producer or to his agent at the time of delivery of such milk or cream to such purchaser or receiver a written statement of the amount of milk or cream so received or purchased.

Section 10. The State Board of Agriculture or its agents are hereby authorized to enter the premises and to examine the books, the records, and testing apparatus of any person, association, copartnership, or corporation, for the purpose of carrying out the provisions of this act.

Section 11. The State Board of Agriculture shall be charged with the enforcement of the provisions of this act and the said Board shall have authority to make such rules and regulations as are necessary for the proper enforcement of the act. Nothing contained in this section shall be construed to prevent any individual from prosecuting anyone violating any of the provisions of this act.

Section 12. For violation of any of the provisions of this act proceedings may be instituted against the owner or manager who is responsible for the business transacted, together with the certified tester or the person weighing and sampling, either or all, to be held equally responsible.

Section 13. Any person or persons violating any of the provisions of this act except section two shall be guilty of a misdemeanor and upon conviction thereof shall be sentenced to pay a fine of not less than ten dollars ($10.00) or more than fifty dollars ($50.00), or imprisonment in the county jail for not less than ten days or more than thirty days, or both, at the discretion of the court. Any person or persons found guilty of violation of section two of this act shall be guilty of a misdemeanor and upon conviction thereof shall be sentenced to pay a fine of not less than one hundred dollars ($100.00) or more than one thousand dollars ($1,000.00), or imprisonment in the county jail for not more than nine months.

Section 14. All fines and penalties imposed and received for the violation of any of the provisions of this act and all moneys received in compliance with any of the provisions of this act shall be paid to the State Board of Agriculture or its agents and shall thereafter be paid into the State Treasury for the use of the Commonwealth.

Section 15. If any provision of this act is declared unconstitutional or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of the act and the applicability thereof to other persons and circumstances shall not be affected thereby.

Section 16. All acts and parts of acts inconsistent with this act are hereby repealed.

Approved April 22, 1935.