4-3-503. Sale of raw milk products — Suspension of producer‘s permit — Severability not permitted.
(1)
As used in this section:
Terms Used In Utah Code 4-3-503
Agriculture: means the science and art of the production of plants and animals useful to man, including the preparation of plants and animals for human use and disposal by marketing or otherwise. See Utah Code 4-1-109
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Month: means a calendar month, unless otherwise expressed. See Utah Code 68-3-12.5
Permit: means a document allowing a person or plant, as designated in the permit, to:
(a)
process, manufacture, supply, test, haul, or pasteurize milk or milk products; or
(b)
repair equipment used to conduct the activities described in Subsection (13)(a). See Utah Code 4-3-102
Person: means a natural person or individual, corporation, organization, or other legal entity. See Utah Code 4-1-109
Plant: means any facility where milk is processed or manufactured. See Utah Code 4-3-102
Producer: means a person who owns a cow or other milk producing hoofed mammal that produces milk for consumption by persons other than the producer's family, employees, or nonpaying guests. See Utah Code 4-3-102
Remainder: An interest in property that takes effect in the future at a specified time or after the occurrence of some event, such as the death of a life tenant.
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
(a)
“Batch” means all the milk emptied from one bulk tank and bottled in a single day.
(b)
“Raw milk product” means any product produced from raw milk.
(c)
“Self-owned retail store” means a retail store:
(i)
of which the producer owns at least 51% of the value of the real property and tangible personal property used in the operations of the retail store; or
(ii)
for which the producer has the power to vote at least 51% of any class of voting shares or ownership interest in the business entity that operates the retail store.
(2)
Except as provided in Subsection (5), a raw milk product may be manufactured, distributed, sold, delivered, held, stored, or offered for sale if:
(a)
the producer obtains a permit from the department to produce the raw milk product under Subsection 4-3-301(6);
(b)
the sale and delivery of the raw milk product is made upon the premises where the raw milk product is produced, except as provided by Subsection (3);
(c)
the raw milk product is sold to consumers for household use and not for resale;
(d)
the raw milk product is bottled or packaged under sanitary conditions and in sanitary containers on the premises where the raw milk product is produced;
(e)
the raw milk product is labeled “raw milk product” and meets the labeling requirements under 21 C.F.R. Parts 101 and 131 and rules established by the department;
(f)
the raw milk used to produce the raw milk product is:
(i)
cooled to 50 degrees Fahrenheit or a lower temperature within one hour after being drawn from the animal;
(ii)
further cooled to 41 degrees Fahrenheit within two hours of being drawn from the animal; and
(iii)
maintained at 41 degrees Fahrenheit or a lower temperature until the raw milk is delivered to the consumer or used to produce the raw milk product;
(g)
the bacterial count of the raw milk used to produce the raw milk product does not exceed 20,000 colony forming units per milliliter;
(h)
the coliform count of the raw milk used to produce the raw milk product does not exceed 10 colony forming units per milliliter;
(i)
the production of the raw milk product conforms to departmental rules for the production of grade A milk products;
(j)
the dairy animals on the premises are:
(i)
permanently and individually identifiable; and
(ii)
free of tuberculosis, brucellosis, and other diseases carried through milk; and
(k)
any person on the premises performing any work in connection with the production, bottling, packaging, handling, or sale of the raw milk product is free from communicable disease.
(3)
A producer may distribute, sell, deliver, hold, store, or offer for sale a raw milk product at a self-owned retail store, that is properly staffed, or from a mobile unit where the raw milk product is maintained through mechanical refrigeration at 41 degrees Fahrenheit or a lower temperature, if, in addition to the requirements of Subsection (2), the producer:
(a)
transports the raw milk product from the premises where the raw milk product is produced to the self-owned retail store in a refrigerated truck where the raw milk product is maintained at 41 degrees Fahrenheit or a lower temperature;
(b)
retains ownership of the raw milk product until it is sold to the final consumer, including transporting the raw milk product from the premises where the raw milk product is produced to the self-owned retail store without any:
(i)
intervening storage;
(ii)
change of ownership; or
(iii)
loss of physical control;
(c)
stores the raw milk product at 41 degrees Fahrenheit or a lower temperature in a display case equipped with a properly calibrated thermometer at the self-owned retail store;
(d)
places a sign above each display case that contains a raw milk product at the self-owned retail store that:
(i)
is prominent;
(ii)
is easily readable by a consumer;
(iii)
reads in print that is no smaller than .5 inch in bold type, “This milk product is raw and unpasteurized. Please keep refrigerated.”; and
(iv)
meets any other requirement established by the department by rule;
(e)
labels the raw milk product with:
(i)
a date, no more than nine days after the raw milk product is produced, by which the raw milk product should be sold;
(ii)
the statement “Raw milk products, no matter how carefully produced, may be unsafe.”;
(iii)
handling instructions to preserve quality and avoid contamination or spoilage;
(iv)
a specific colored label as determined by the department by rule; and
(v)
any other information required by rule;
(f)
refrains from offering the raw milk product for sale until:
(i)
the department or a third party certified by the department tests each batch of raw milk used to produce a raw milk product for standard plate count and coliform count; and
(ii)
the test results meet the minimum standards established for those tests;
(g)
(i)
maintains a database of the raw milk product sales; and
(ii)
makes the database available to the Department of Health and Human Services during the self-owned retail store’s business hours for purposes of epidemiological investigation;
(h)
ensures that the plant and retail store complies with Chapter 5, Utah Wholesome Food Act, and the rules governing food establishments enacted under Section 4-5-301; and
(i)
complies with the applicable rules adopted as authorized by this chapter.
(4)
A producer may distribute, sell, deliver, hold, store, or offer for sale a raw milk product and pasteurized milk at the same self-owned retail store if:
(a)
the self-owned retail store is properly staffed; and
(b)
the producer:
(i)
meets the requirements of Subsections (2) and (3);
(ii)
operates the self-owned retail store on the same property where the raw milk product is produced; and
(iii)
maintains separate, labeled, refrigerated display cases for raw milk products and pasteurized milk.
(5)
A producer may, without meeting the requirements of Subsection (2), sell up to 120 gallons of raw milk per month if:
(a)
the sale is directly to an end consumer, for household use and not for resale;
(b)
the sale and delivery of the raw milk is made upon the premises where the raw milk is produced;
(c)
the producer labels the raw milk with:
(i)
the producer’s name and address;
(ii)
a date, no more than nine days after the raw milk is produced, by which the raw milk should be sold;
(iii)
the statement “This raw milk has not been licensed or inspected by the state of Utah. Raw milk, no matter how carefully produced, may be unsafe.”; and
(iv)
handling instructions to preserve quality and avoid contamination or spoilage;
(d)
the raw milk is:
(i)
cooled to 50 degrees Fahrenheit or a lower temperature within one hour after being drawn from the animal; and
(ii)
further cooled to 41 degrees Fahrenheit within two hours of being drawn from the animal;
(e)
the producer conducts a monthly test ensuring the coliform count of the raw milk does not exceed 10 colony-forming units per milliliter;
(f)
the dairy animals on the producer’s premises are free of tuberculosis, brucellosis, and other diseases carried through milk;
(g)
the producer maintains records of tests and sales for a minimum of two years; and
(h)
the producer notifies the department of the producer’s intent to sell raw milk pursuant to this Subsection (5) and includes in the notification the producer’s name and address.
(6)
A person who conducts a test required by Subsection (3) shall send a copy of the test results to the department as soon as the test results are available.
(7)
(a)
The department shall adopt rules, as authorized by Section 4-3-201, governing the sale of raw milk products at a self-owned retail store.
(b)
The rules adopted by the department shall include rules regarding:
(i)
permits;
(ii)
building and premises requirements;
(iii)
sanitation and operating requirements, including bulk milk tanks requirements;
(iv)
additional tests;
(v)
frequency of inspections, including random cooler checks;
The department shall establish and collect a fee for the tests and inspections required by this section and by rule in accordance with Section 63J-1-504.
(ii)
Notwithstanding Section 63J-1-504, the department shall retain the fees as dedicated credits and may only use the fees to administer and enforce this section.
(8)
(a)
The department shall suspend a permit issued under Section 4-3-301 if:
(i)
two out of four consecutive samples or two samples in a 30-day period violate sample limits established under this section; or
(ii)
a producer violates this section or a rule adopted as authorized by this section.
(b)
The department may reissue a permit that has been suspended under Subsection (8)(a) if the producer has complied with all of the requirements of this section and rules adopted as authorized by this section.
(9)
(a)
If any subsection of this section or the application of any subsection to any person or circumstance is held invalid by a final decision of a court of competent jurisdiction, the remainder of the section may not be given effect without the invalid subsection or application.
(b)
The provisions of this section may not be severed.
(10)
Nothing in this chapter shall be construed to impede the Department of Health and Human Services or the Department of Agriculture and Food in investigation of foodborne illness.
(11)
The department shall issue a cease and desist order to a producer linked to a foodborne illness and shall stop sale of a raw milk product currently being sold.
(12)
The order shall remain in effect until the department verifies that the producer:
(a)
adheres to this section; and
(b)
has three consecutive clean tests of the raw milk product.
(13)
In addition to Subsections (11) and (12), if a producer’s raw milk product has been linked to a foodborne illness outbreak, and the department finds that the producer has violated the applicable provisions of this section, the department may impose upon the producer the following administrative penalties:
(a)
upon the first violation, a penalty of no more than $300;
(b)
upon a second violation, a penalty of no more than $750; and
(c)
upon a third or subsequent violation a penalty of no more than $1,500.
