CHAPTER 465

AN ACT TO AMEND CHAPTER 41, TITLE 16, DELAWARE CODE, BY PROVIDING UNIFORM STANDARDS AND REGULATIONS FOR THE PRODUCTION, PROCESSING, PACKAGING, DISTRIBUTION AND SALE OF FROZEN DESSERTS AND APPOINTING THE STATE BOARD OF AGRICULTURE AS THE ENFORCEMENT AGENCY.

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

Section 1. Amend Title 16, Delaware Code, Section 4101, by striking said section in its entirety and substituting in lieu thereof a new section to read as follows:

§ 4101. Policy and definitions

(a) Declaration of policy.

(i) 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;

(ii) 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, and by providing for rules and regulations which will affect their orderly marketing and insure uniform and proper sanitary standards.

(b) Definitions

(i) For the purpose of this article and for any rules, regulations, definitions, standards of identity, or labeling requirements 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, artificially sweetened ice milk, ice milk, fruit sherbet, water ice, quiescently frozen confection quiescently frozen dairy confection, whipped cream confection, bisque tortoni, mellorine frozen desserts 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 such products are customarily prepared or frozen whether made with dairy or non-dairy products.

Section 2. Amend Title 16, Delaware Code, Section 4102, by striking said section in its entirety and substituting in lieu thereof a new section to read as follows:

§ 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 and regulations 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 and definitions and standards of identity promulgated in accordance herewith be construed in a manner similar to the corresponding Federal regulation, aforesaid, whenever possible.

(b) The Board of Agriculture shall, after public hearing, promulgate definitions and standards of identity for frozen desserts, regulations for the labeling of any frozen desserts, and regulations to implement the purposes of this chapter. Definitions and standards of identity promulgated by the Board shall not be in conflict with Federal Standards. The Board may adopt such
definitions and standards of identity as are adopted by the United
States Secretary of Health, Education and Welfare as aforesaid.

(c) Public hearings as herein provided shall be held only upon reasonable notice to all interested parties as provided by law in like cases. Following any hearing to consider rules, regulations, definitions, standards of identity, labeling requirements, or any of these, the Board shall issue a recommended decision and shall afford interested parties an opportunity to file exceptions based upon the hearing record. The Board in issuing a final decision shall rule on any exceptions filed setting forth its reasons therefor. No definition or standard of identity promulgated by the Board shall conflict with Federal definitions or standards of identity. With each rule or regulation adopted there shall be filed and made 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 signified 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 4101 of this chapter, which are inconsistent with such rules and regulations shall be deemed to be of no effect.

Section 3. Amend Title 16, Delaware Code, Section 4103, by striking said section in its entirety and substituting in lieu thereof a new section to read as follows:

§ 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 frozen dessert which is adulterated or misbranded.

Section 4. Title 16, Delaware Code, Section 4104 is hereby repealed.

Section 5. Title 16, Delaware Code, Section 4105 is hereby repealed.

Section 6. Amend Title 16, Delaware Code, Section 4106, by striking said section in its entirety and substituting in lieu thereof a new section to read as follows:

§ 4106. Adulterations; prohibited and permitted ingredients

(c) Any product for which a definition and standard of identity has been promulgated in accordance with this chapter shall be deemed to be adulterated within the meaning of this chapter if in purity or quality it fails to conform with the definitions and standards of identity promulgated.

(d) Any frozen dessert which contains any substance or compounds known or likely to be harmful to health, as determined by the State Board of Health, shall be deemed to be adulterated within the meaning of this chapter.

Section 7. Amend Title 16, Delaware Code, Section 4107, by striking said section in its entirety and substituting in lieu thereof a new section to read as follows:

§ 4107. Misbranded

Any mixtures or preparations shall be deemed to be misbranded if marked or labeled as any frozen dessert for which a definition or standard of identity has been promulgated, but does not conform to such definition or standard of identity.

Section 8. Amend Title 16, Delaware Code, Section 4109, by striking said section in its entirety and substituting in lieu thereof a new section to read as follows:

§ 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 any one violating any of the provisions of this Chapter or of rules or regulations made pursuant to Section 4102 of this Chapter in the Superior Court.

Section 9. Amend Title 16, Delaware Code, Chapter 41, by adding a new subsection to read as follows:

§ 4111. Effective date

This Act shall take effect immediately; provided, however, that for a period of one year after the passage of this Act Sections 4101, 4103, and 4106 of Chapter 41, Title 16 as in effect prior to the passage of this Act shall become the definitions, standards of identity and regulations of the Board of Agriculture unless specifically superseded by definitions, standards of identity or regulations promulgated by the Board and expressed to supersede those sections of Chapter 41, Title 16 above mentioned.

Approved August 9, 1968.