CHAPTER 262

AN ACT TO AMEND CHAPTER 41, TITLE 16, DELAWARE CODE, REGARDING ICE CREAM TO INCLUDE DEFINITIONS, STANDARDS, REGULATORY PROVISIONS AND PENAL PROVISIONS REGARDING FROZEN SWEETENED PRODUCTS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 41, Title 16, Delaware Code, is amended to read as follows:

CHAPTER 41. FROZEN SWEETENED PRODUCTS

§ 4101. Definitions and standards

(a) (1) As used in this Chapter, "ice cream" means any frozen sweetened milk product which is stirred during the process of freezing and includes every frozen milk product which contains not less than 10% by weight of milk fat and not less than 20% by weight of total milk solids, or skim milk solids, except as provided below, and which in any manner simulates the textures or characteristics of ice cream, no matter under what coined or trade name it may be sold. Ice cream shall be made from a combination of one or more of the following ingredients, viz., milk fat, milk solids not fat, sugars, and flavoring, with or without eggs, coloring, water, malted milk, fruit juices, fruit, properly prepared and cooked cereal, cocoa, chocolate, nuts, maple syrup, cakes or confections; and with or without added stabilizer or emulsifier or both composed of wholesome edible material. It shall contain not more than one-half of one per cent by weight of stabilizer, not more than 0.2 per cent by weight of emulsifier. When chocolate, cocoa, fruit, properly prepared and cooked cereal, nuts, maple syrup, malted milk, cakes or confections are used for the purpose of flavoring, the weights of milk fat and total milk solids shall not be less than 10 per cent and 20 per cent respectively of the remainder obtained by subtracting the weight of such ingredients from the weight of the finished ice cream; but in no case is the weight of milk fat or total milk solids to be less than 8 per cent and 16 per cent respectively of the weight of the finished ice cream.

(2) The finished ice cream shall contain not less than 1.6 pounds of total food solids to the gallon and weigh not less than 4.5 pounds to the gallon.

(b) As used in this Chapter, "frozen custard," "French ice cream," and "French custard ice cream" means any product which conforms to the definition and standard of identity prescribed for "ice cream" in Section 4101 (a) of this Chapter, except that: the total weight of egg yolk solids therein is not to be less than 1.4 per cent of the weight of the finished product: Provided, however, that when chocolate, malted milk, cocoa, fruit, nuts, properly prepared and cooked cereal, maple syrup, cakes or confections are used, the content of egg yolk solids may be reduced in proportion to such ingredient or ingredients added under the conditions prescribed in Section 4101 (a) of this Chapter, for reduction in milk fat and total milk solids; but in no case is the content of egg yolk solids to be less than 1.12 per cent.

(c) As used in this Chapter, "ice milk" means any product which conforms to the definition and standard of identity prescribed in Section 4101 (a) of this Chapter for ice cream, except that:

(1) Its content of milk fat is not less than 2 per cent but not more than 7 per cent.

(2) Its content of total milk solids is not less than 11 per cent.

(3) The quantity of total food solids per gallon shall not be less than 1.3 pounds.

(4) The provision for reduction in milk fat and total milk solids from addition of bulky flavor ingredients in Section 4101 (a) of this Chapter does not apply.

(d) As used in this Chapter, "sherbet" or "fruit sherbet" means any product which contains any mature fruit or the juice of any mature fruit and shall otherwise conform to the definition and standard of identity prescribed for ice cream in Section 4101 (a) of this Chapter except that:

(1) The titratable acidity of the finished fruit sherbet, calculated as lactic acid, shall not be less than 0.35 per cent.

(2) The content of milk fat and non-fat milk solids therein shall be such that the weight of milk fat is not less than 1 per cent and not more than 2 per cent, and the weight of total milk solids is not less than 2 per cent and not more than 5 per cent of the weight of the finished fruit sherbet.

(3) The quantity of fruit ingredients used shall be such that, in relation to the weight of the finished sherbet, the weight of fruit or fruit juice, as the case may be, (including water necessary to reconstitute partially or wholly dried fruits or fruit juices or their original moisture content), shall not be less than 2 per cent in the case of citrus sherbets, 6 per cent in the case of berry sherbets, and 10 per cent in the case of sherbets prepared with other fruits. For the purposes of the subsection, tomatoes and rhubarb are considered as kinds of fruit.

(0) The provisions for the reduction in milk fat and total milk solids from addition of chocolate, malted milk, cocoa, fruit, nuts, properly prepared and cooked cereal, maple syrup, cakes or confections in Section 4101 (a) of this Chapter, shall not apply, and Subsection 4101 (a) of this Chapter shall not apply.

(e) As used in this Chapter, "ice" or "water ice" means any frozen sweetened product which is stirred during the process of freezing not conforming to the Definitions and Standards set forth in Section 4101 (a), (b), (c), and (d) of this Chapter and shall contain any mature fruit or the juice of any mature fruit. Water ice shall be made from a combination of one or more of the following ingredients, viz., sugars, flavoring, with or without eggs, coloring water, fruit juices, fruit; and with or without wholesome edible acid in such quantity as seasons the finished food; and with or without added stabilizer composed of wholesome, edible material. It shall contain not more than one-half of one per cent by weight of stabilizer.

The titratable acidity of the finished water ice, calculated as lactic acid, shall not be less than 0.35 per cent. The quantity of fruit ingredients used shall be such that in relation to the weight of the finished water ice, the weight of fruit or fruit juice as the case may be, (including water necessary to reconstitute partially or wholly dried fruits or fruit juices to their original moisture content) is not less than 2 per cent in the case of citrus ices, 6 per cent in the case of berry ices and 10 per cent in the case of ices prepared with other fruits.

(f) (1) As used in this Chapter, "quiescently frozen confections" means a clean and wholesome frozen, sweetened, flavored product in the manufacture of which freezing has not been accompanied by stirring or agitation (generally known as quiescent freezing). This confection may be acidulated with harmless organic acid, may contain milk solids, may be made with or without added harmless pure or imitation flavoring, with or without added harmless coloring. The finished product may contain not more than one-half of one (1/2%) per cent by weight of stabilizer composed of wholesome edible material. The finished product shall contain not less than seventeen (17%) per cent by weight of total food solids.

(2) This confection must be manufactured in the form of servings, individually packaged, bagged or otherwise wrapped, properly labeled, and purveyed to the consumer in its original factory-filled package.

(3) In the production of quiescently frozen confections, no processing or mixing prior to quiescent freezing shall be used that develops in the finished confection mix any physical expansion in excess of ten (10%) per cent.

(g) (1) As used in this Chapter, "quiescently frozen dairy confections" means a clean and wholesome frozen product made from water, milk products and sugar, with added harmless pure or imitation flavoring, with or without added harmless coloring, with or without added stabilizer and with or without added emulsifier; and in the manufacture of which freezing has not been accompanied by stirring or agitation (generally known as quiescent freezing). It shall contain not less than thirteen (13%) per cent by weight of total milk solids, not less than thirty-three (33%) per cent by weight of total food solids, not more than one-half of one (1/2%) per cent by weight of stabilizer, and not more than one-fifth of one (1/5%) per cent of weight by emulsifier. Stabilizer and emulsifier must be composed of wholesome, edible material.

(2) This confection must be manufactured in the form of servings, individually packaged, bagged or otherwise wrapped, properly labeled, and purveyed to the consumer in its original factory-filled package.

(3) In the production of quiescently frozen confection, no processing or mixing prior to quiescent freezing shall be used that develops in the finished confection mix any physical expansion in excess of ten (10%) per cent.

§ 4102. Conformity with Federal Standards

(a) It is expressly declared to be the intent of the General Assembly in the passage of this Chapter that Delaware law substantially conform with the Federal regulations promulgated under the authority of the United States Secretary of Health, Education and Welfare, prescribing definitions and standards for frozen desserts, published pursuant to Section 701, 52 Stat. 1055; 21 U. S. C. § 371. It is further intended that provisions of this Chapter be construed in a manner similar to the corresponding Federal regulation, aforesaid, whenever possible.

() Should Definitions and Standards promulgated under the authority of the United States Secretary of Health, Education and Welfare, be established so that the Definitions and Standards prescribed in Section 4101 of this Chapter are not in substantial conformity therewith, the State Board of Agriculture shall have the power to adopt, and may adopt, pursuant to public healing, rules and regulations which are in the public interest establishing definitions and standards for frozen desserts in substantial conformity with existing or new regulations promulgated under the authority of the United States Secretary of Health, Education and Welfare, prescribing definitions and standards of identity for frozen desserts.

() Public hearings as herein provided shall be held only upon reasonable notice to all interested parties as provided by law in like cases and provided that with each rule or regulation adopted there shall be filed and available upon request to any interested person the findings of fact supporting such rule or regulation. A copy of each proposed rule or regulation of the State Board of Agriculture shall be printed, generally distributed, and specially distributed to any person who signifies their interest theretofore or thereafter. No rule or regulation shall take effect or be effective until 30 days after general distribution or such longer time as the Secretary of Agriculture shall deem to be in the public interest. Rules and regulations promulgated in accordance with this authority shall have the force and effect of law and supersede all local ordinances and regulations inconsistent therewith. Any interested person aggrieved by any rule or regulation promulgated in accordance with this authority may have an appeal within 20 days after the effective date of such rule or regulation, by petition to the Court of Chancery and may appeal from the decision of the Court of Chancery as provided for in other cases.

(d) Upon adoption of the rules and regulations by the State Board of Agriculture, as herein provided, the provisions of Section 4191 of this Chapter, which are inconsistent with such rules and regulations shall be deemed to be of no effect.

§ 4103. Sale, possession, etc. of adulterated or misbranded products

No person shall sell, distribute, offer for sale, or have in possession for selling or distribution any product for which a definition and standard is prescribed in this Chapter which is adulterated or misbranded, except as permitted by Section 4104 of this Chapter. It shall be unlawful to sell, offer for sale, expose for sale, or have in possession with intent to sell, any product herein provided for in any container or package which is not plainly and distinctly marked with the name and the address of the plant of the manufacturer thereof or in lieu of such name and address, the name and address of the distributor preceded or followed by the words "distributed by" or "distributor." Packages bearing a distributor's name and address in lieu of the actual name and address of the manufacturer must bear a code identifying the manufacturer and the plant where manufactured. Such code shall be recorded with the State Board of Health and the State Board of Health shall provide facilities for recording such codes. Such code record must be kept for five years from the date of sale of the product by both the manufacturer and the distributor and such record shall be open to inspection by the State Board of Agriculture.

§ 4104. Exceptions

(a) Nothing contained in this Chapter shall be construed to prohibit the selling and distributing by any person doing business in this State, of ice cream, frozen custard, French ice cream, French custard ice cream, ice milk, fruit sherbet, sherbet, water ice, ice, a quiescently frozen confection or a quiescently frozen dairy confection or mixtures or compounds thereof containing less than the standards prescribed in Section 4101 of this Chapter, in states where a lesser percentage of milk fats or milk solids is allowed, and such person shall have the right to manufacture and possess the aforesaid products, mixtures or compounds containing less than the standards prescribed in such Section, only for the purpose of selling and distributing the same in other states.

(b) Nothing contained in this Chapter shall be construed to prohibit the selling and distributing or having in possession for sale or distribution by any person of any product for which a definition and standard is prescribed in this Chapter if such prohibition would be in violation of the Constitution of the United States of America or in violation of the Constitution of the State of Delaware.

§ 4105. Quality of ingredients and coloring

All ingredients used in any product for which a definition and standard is prescribed in this Chapter, shall be of good quality and free from rancid or harmful preparations and no coloring shall be used except those certified by the United States Department of Health, Education and Welfare.

§ 4106. Adulterations; prohibited and permitted ingredients

(a) Any product for which a definition and standard is prescribed in this Chapter shall be deemed to be adulterated within the meaning of this Chapter if in purity or quality it fails to meet standards set forth in this Chapter, or if it contains any substance or compounds known or likely to be harmful to health, as determined by the State Board of Health.

(b) A product shall also be deemed to be adulterated within the meaning of this Chapter if it is any frozen sweetened product regardless of the name under which it is manufactured, sold, or offered for sale, which is made in imitation or resemblance of or is manufactured in a manner similar to the process used in manufacturing but is not ice cream, frozen custard, French ice cream, French custard ice cream, ice milk, sherbet, fruit sherbet, ice, water ice, a quiescently frozen confection, or a quiescently frozen dairy confection.

(c) Nothing contained in this Chapter shall be construed to prohibit the use of condensed or evaporated milk, milk powder, homogenized milk fats, gelatin or vegetable gums.

(d) It shall be unlawful for any person, personally or by or through an agent, servant or employee, to sell, offer for sale, expose for sale, or have in possession with intent to sell, ice milk packaged in containers of greater than one-half gallon capacity if the ice milk or any of its ingredients contains added color or any ingredient added for the purpose of imparting a characterizing flavor.

§ 4107. Misbranded

Any mixtures or preparations which do not conform to the standards set forth in this Chapter, shall be deemed to be misbranded if marked or labeled "ice cream," "sherbet," "fruit sherbet," "ice milk," "frozen custard," "French ice cream," "French custard ice cream," "ice," "water ice," "quiescently frozen confection," or "quiescently frozen dairy confection" and sold or represented to be such.

§ 4108. Violations and penalties

Any person and the officers or employees of any corporation, violating any of the provisions of this Chapter shall, for the first offense, be fined not less than $50, and for each subsequent offense $100, to be collected as fines of like amount are now collected.

§ 4109. Enforcement agency

The State Board of Agriculture shall be charged with the enforcement of the provisions of this Chapter and may bring action in the Superior Court. Nothing contained in this Section shall be construed to prevent any individual from prosecuting anyone violating any of the provisions of this Chapter or of rules or regulations made pursuant to Section 4108 of this Chapter in the Superior Court.

§ 4110. Severability

It is hereby declared to be the legislative intent that if this Chapter cannot take effect in its entirety because of the decision of any Court holding unconstitutional any part, sentence or clause hereof, the remaining provisions of the Chapter shall be given full force and effect as completely as if the part held unconstitutional had not been included herein.

It is hereby declared as the intent of the Legislature that every other part, sentence or clause of this Chapter would have been enacted had such unconstitutional provision not been included herein.

Approved December 28, 1961.