|34A.05||FALSE STATEMENT OR RECORD.|
|34A.08||APPEAL OF ADMINISTRATIVE ACTION OR PENALTY.|
|34A.11||EMBARGO, SEIZURE, AND CONDEMNATION.|
|34A.12||POWERS OF THE COMMISSIONER.|
The definitions in this section and chapters 28, 28A, 29, 30, 31, 31A, 32, and 34 apply to this chapter. The definitions in this section apply to chapter 32.
"Commissioner" means the commissioner of agriculture.
"Federal act" means the federal Food, Drug, and Cosmetic Act, as amended, United States Code, title 21, sections 301 et seq.
"Food" means every ingredient used for, entering into the consumption of, or used or intended for use in the preparation of food, drink, confectionery, or condiment for humans or other animals, whether simple, mixed, or compound; and articles used as components of these ingredients.
"Frozen food" is food that is processed and preserved by freezing and which is intended to be sold in the frozen state.
"Label" means a display of written, printed, or graphic matter upon or affixed to the container of any food, and includes a like display, if required by law or rule, on the outside container or wrapper, if there is one, of the retail package of the food, not including package liners.
"Labeling" means labels and other written, printed, or graphic matter:
(1) on food or its containers or wrappers;
(2) accompanying or supporting food; or
(3) a placard in, on, or adjacent to the food.
"Nonperishable food" is food with a shelf life of more than 90 days and that is not perishable food, readily perishable food, or frozen food.
"Perishable food" means food including, but not limited to, fresh fruits, fresh vegetables, and other products that need protection from extremes of temperatures in order to avoid decomposition by microbial growth or otherwise.
"Person" means any individual, firm, partnership, cooperative, society, joint stock association, association, company, or corporation and includes any officer, employee, agent, trustee, receiver, assignee, or other similar business entity or representative of one of those entities.
"Readily perishable food" is food or a food ingredient consisting in whole or in part of milk, milk products, eggs, meat, fish, poultry, or other food or food ingredient that is capable of supporting growth of infectious or toxigenic microorganisms. Readily perishable food requires time and temperature control to limit pathogenic microorganism growth or toxin formation.
"Sell" and "sale" mean keeping, offering, or exposing for sale, use, transporting, transferring, negotiating, soliciting, or exchanging food; having in possession with intent to sell, use, transport, negotiate, solicit, or exchange food; storing, manufacturing, producing, processing, packing, and holding of food for sale; dispensing or giving food; or supplying or applying food in the conduct of any food operation or carrying food in aid of traffic in food whether done or permitted in person or through others.
The following items are not perishable food, readily perishable food, or frozen food:
(1) packaged pickles;
(2) jellies, jams, and condiments in sealed containers;
(3) bakery products such as bread, rolls, buns, donuts, fruit-filled pies, and pastries;
(4) dehydrated packaged food;
(5) dry or packaged food with a water activity that precludes development of microorganisms; and
(6) food in unopened hermetically sealed containers that is commercially processed to achieve and maintain commercial sterility under conditions of nonrefrigerated storage and distribution.
Food is adulterated if:
(1) it bears or contains any poisonous or deleterious substance which may render it injurious to health; but if the substance is not an added substance, the item is not adulterated under this clause if the quantity of the substance in the item does not ordinarily render it injurious to health;
(2) it bears or contains any added poisonous, deleterious, or nonnutritive substance, other than one which is a pesticide in or on a raw agricultural commodity; a food additive; or a color additive, that is unsafe within the meaning of section 31.122 or section 406 of the federal act;
(3) it bears or contains, by administration of a substance to the live animal or otherwise, an added poisonous or harmful substance, other than a pesticide in or on a raw agricultural commodity, a food additive, or a color additive, that may, in the judgment of the commissioner, make the article unfit for human food;
(4) it is unsafe or bears or contains any food additive that is unsafe within the meaning of section 31.122 or section 409 of the federal act;
(5) it is or bears or contains any color additive that is unsafe within the meaning of section 31.122 or section 706 of the federal act;
(6) it is a raw agricultural commodity and it bears or contains a pesticide that is unsafe within the meaning of section 31.122 or section 408 of the federal act;
(7) it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food;
(8) it has been produced, prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health;
(9) it is in whole or in part the product of a diseased animal or of an animal which has died otherwise than by slaughter that is unsafe within the meaning of section 402(a)(1) or (2) of the federal act, or of an animal that has been fed upon the uncooked offal from a slaughterhouse;
(10) its container is wholly or partly composed of any poisonous or deleterious substance that may render the contents injurious to health;
(11) it has been intentionally subjected to radiation, unless the use of the radiation was in conformity with a rule, regulation, or exemption in effect pursuant to section 31.122 or section 409 of the federal act;
(12) any valuable constituent has been in whole or in part omitted or abstracted from the food; if any substance has been substituted wholly or in part for the food; or if damage or inferiority has been concealed in any manner;
(13) any substance has been added to it or mixed or packed with it so as to increase its bulk or weight, reduce its quality or strength, or make it appear better or of greater value than it is;
(14) its composition or quality falls below or differs from that which it is purported or is represented to possess by its labeling; or
(15) it is confectionery and:
(i) has partially or completely imbedded in the food any nonnutritive object, provided that this clause does not apply in the case of any nonnutritive object if in the judgment of the commissioner, as provided by rules, the object is of practical functional value to the confectionery product and would not render the product injurious or hazardous to human or animal health; or
(ii) bears or contains any nonnutritive substance; provided that this item does not apply to a confection containing alcohol as defined in section 31.76, or a safe nonnutritive substance which is in or on confectionery by reason of its use for some practical functional purpose in the manufacture, packaging, or storing of the confectionery if the use of the substance does not promote deception of the consumer or otherwise result in adulteration or misbranding in violation of this chapter, and provided further that the commissioner may, for the purpose of avoiding or resolving uncertainty as to the application of this clause, issue rules allowing or prohibiting the use of particular nonnutritive substances.
(a) Food is misbranded if:
(1) its labeling is false or misleading in any particular, or its labeling, whether on the item itself, its container, or its package, fails to conform with the requirements of this chapter;
(2) it is offered for sale or distributed under the name of another food;
(3) it is an imitation of another food for which a definition and standard of identity have been prescribed by rules as provided by sections 31.10 and 31.102; or if it is an imitation of another food that is not subject to clause (5), unless in either case its label bears in type of uniform size and prominence the word "imitation" and immediately thereafter the name of the food imitated;
(4) its container is so made, formed, or filled as to be misleading;
(5) it purports to be or is represented as a food for which a definition and standard of identity have been prescribed by rules as provided by sections 31.10, 31.102, and 31A.07, unless it conforms to that definition and standard, and its label bears the name of the food specified in the definition and standard, and insofar as may be required by the rules, the common names of optional ingredients, other than spices, flavoring, and coloring, present in the food;
(6) it purports to be or is represented as:
(i) a food for which a standard of quality has been prescribed by rules as provided by sections 31.10 and 31.102, and its quality falls below that standard unless its label bears in a manner and form the rules specify, a statement that it falls below the standard; or
(ii) a food for which a standard or standards of fill of container have been prescribed by rule as provided by sections 31.10, 31.102, and 31A.07, and it falls below the standard of fill of container applicable thereto unless its label bears, in a manner and form the rules specify, a statement that it falls below the standard;
(7) it is not subject to clause (5), unless it bears labeling clearly giving the common or usual name of the food, if there is one, and in case it is fabricated from two or more ingredients, the common or usual name of each ingredient, except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each, provided that to the extent that compliance with the requirements of this clause is impractical or results in deception or unfair competition, exemptions must be established by rules promulgated by the commissioner;
(8) it purports to be or is represented for special dietary uses, unless its label bears information concerning its vitamin, mineral, and other dietary properties as the commissioner determines to be, and by rules prescribed as, necessary in order to fully inform purchasers as to its value for those uses;
(9) it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; provided that, to the extent that compliance with the requirements of this clause is impracticable, exemptions must be established by rules promulgated by the commissioner. The provisions of this clause and clauses (5) and (7) with respect to artificial coloring do not apply to butter, cheese, or ice cream. The provisions with respect to chemical preservatives do not apply to a pesticide when used in or on a raw agricultural commodity which is the product of the soil;
(10) it is a product intended as an ingredient of another food and when used according to the directions of the purveyor will result in the final food product being adulterated or misbranded;
(11) it is a color additive unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to the color additive prescribed under the provisions of the federal act;
(12) it is food subject to section 31.101, subdivision 10, or chapter 31A, that fails to bear, directly or on its container, as the commissioner by rule prescribes, the inspection legend and other information the commissioner may require by rule to ensure that it will not have false or misleading labeling, and that the public will be told how to keep the article wholesome; or
(13) its labeling would deceive or mislead the purchaser with respect to its composition or suitability.
(b) Food is also misbranded if it is a raw agricultural commodity which is the product of the soil, bearing or containing a pesticide applied after harvest, unless the shipping container of that commodity bears labeling which declares the presence of the chemical in or on the commodity and the common or usual name and the function of the chemical. No such declaration is required while the commodity, having been removed from the shipping container, is being held or displayed for sale at retail out of the container in accordance with the custom of the trade.
(a) The commissioner shall enforce this chapter and chapters 28, 28A, 29, 30, 31, 31A, and 34. To carry out the enforcement duties under these chapters, the commissioner may, upon presenting appropriate credentials, during regular working hours and at other reasonable times, inspect premises subject to the commissioner's enforcement and licensing authority; require information from persons with information relevant to an inspection; and inspect and copy relevant papers and records, including business records.
(b) The commissioner may administer oaths, take and cause to be taken depositions of witnesses, and issue subpoenas, and may petition the district court in the county in which the premises is located to compel compliance with subpoenas or to permit an inspection.
(c) Violations of chapters 28, 28A, 29, 30, 31, 31A, and 34, or rules adopted under chapters 28, 28A, 29, 30, 31, 31A, and 34, are a violation of this chapter.
(d) Upon the request of the commissioner, county attorneys, sheriffs, and other officers having authority in the enforcement of the general criminal laws shall take action to the extent of their authority necessary or proper for the enforcement of this chapter or standards, stipulations, and agreements of the commissioner.
If minor violations of this chapter occur or the commissioner believes the public interest will be best served by a suitable notice of warning in writing, this chapter does not require the commissioner to take any additional action.
Civil judicial enforcement actions may be brought by the attorney general in the name of the state on behalf of the commissioner. A county attorney may bring a civil judicial enforcement action upon the request of the commissioner and agreement by the attorney general.
The commissioner may apply to a court with jurisdiction for a temporary or permanent injunction to prevent, restrain, or enjoin violations of provisions of this chapter.
Each county attorney or city attorney to whom the commissioner reports any violation of this chapter shall consider instituting appropriate proceedings in the proper courts and prosecuting them in the manner required by law. If the county or city attorney refuses to prosecute, the attorney general, on request of the commissioner, may prosecute.
A person must not knowingly make or offer a false statement, record, or other information as part of:
(1) an application for registration, listing, license, certification, or permit subject to this chapter;
(2) records or reports required subject to this chapter; or
(3) an investigation of a violation of this chapter.
(a) The commissioner may enforce this chapter by written warning, administrative meeting, cease and desist, forced sale, detention, embargo, condemnation, citation, corrective action order, seizure, agreement, withdrawal from distribution, or administrative penalty if the commissioner determines that the remedy is in the public interest.
(b) For facilities required to submit a plan review under rules of the commissioner of agriculture, the commissioner may withdraw by written order the approval of a facility or equipment if:
(1) hazards to human life exist; or
(2) there is satisfactory evidence that the person to whom the approval was issued has used fraudulent or deceptive practices to evade or attempt to evade provisions of this chapter.
(c) Any action under this subdivision may be appealed pursuant to section 34A.08.
(a) The commissioner may revoke, suspend, limit, modify, or refuse to grant or renew a registration, listing, permit, license, or certification if a person violates or has violated this chapter within the last three years.
(b) The commissioner may revoke, suspend, limit, modify, or refuse to grant or renew a registration, listing, permit, license, or certification to a person from another state if that person has had a registration, permit, license, or certification denied, revoked, or suspended by another state for an offense reasonably related to the requirements, qualifications, or duties of a registration, permit, license, or certification issued under this chapter.
(c) The commissioner may revoke, suspend, limit, modify, or refuse to grant or renew a registration, listing, permit, license, or certification to a person after receiving satisfactory evidence that the registrant, permittee, licensee, or certificate holder has used fraudulent and deceptive practices in the evasion or attempted evasion of this chapter.
(d) A registration, listing, permit, license, or certification may not be revoked or suspended until the registrant, permittee, licensee, or certificate holder has been given opportunity for a hearing by the commissioner. After receiving notice of revocation or suspension, a registrant, permittee, licensee, or certificate holder has ten days to request a hearing, or another time period mutually agreed to by both parties. If no request is made within ten days or other agreed-upon time, the registration, listing, permit, license, or certification is revoked or suspended. In the case of a refusal to grant a registration, listing, permit, license, or certification, the registrant, permittee, licensee, or certificate holder has ten days from notice of refusal to request a hearing. Upon receiving a request for hearing, the department shall proceed pursuant to section 34A.08, subdivision 2.
(a) In determining the amount of the administrative penalty, the commissioner shall consider the economic gain received by the person allowing or committing the violation, the gravity of the violation in terms of actual or potential damage to human or animal health and the environment, the willfulness of the violation, number of violations, history of past violations, and other factors justice may require, if the additional factors are specifically identified in the inspection report. For a violation after an initial violation, the commissioner shall also consider the similarity of the most recent previous violation and the violation to be penalized, the time elapsed since the last violation, the number of previous violations, and the response of the person to the most recent previous violation identified.
(b) The commissioner may issue an administrative citation assessing an administrative penalty of up to $1,500 for each violation of this chapter. Each day a violation continues is a separate violation. The citation must describe the nature of the violation, the statute or rule alleged to have been violated, the time for correction, if applicable, and the amount of any proposed fine. The citation must advise the person to notify the commissioner in writing within 20 days, or another time period mutually agreed to by the commissioner and the person subject to the citation, if the person wishes to appeal the citation, and that if the person fails to appeal the citation, the citation is the final order and not subject to further review.
(c) An administrative penalty may be assessed if the person subject to a written order does not comply with the order in the time provided in the order.
(a) If a person subject to an administrative penalty fails to pay the penalty, which must be part of a final citation by the commissioner, by 30 days after the final order is issued, the commissioner may commence a civil action for double the assessed penalty plus attorney fees and costs.
(b) An administrative penalty may be recovered in a civil action in the name of the state brought in the district court of the county where the violation is alleged to have occurred or the district court where the commissioner has an office.
(a) After service of a citation under section 34A.07 or order under section 34A.06, subdivision 1, a person has 20 days from receipt of the citation or order, or another time period mutually agreed to by the commissioner and the person subject to the citation or order, to notify the commissioner in writing that the person intends to contest the citation or order through a hearing. The hearing request must specifically identify the order or citation being contested and state the grounds for contesting it.
(b) If the person fails to notify the commissioner that the person intends to contest the citation or order, the citation or order is final and not subject to further judicial or administrative review.
If a person notifies the commissioner that the person intends to contest a citation or order issued under this chapter, the Office of Administrative Hearings shall conduct a hearing in accordance with the applicable provisions of chapter 14 for hearings in contested cases.
A person who violates this chapter or an order, standard, stipulation, agreement, citation, or schedule of compliance of the commissioner, or impedes, hinders, or otherwise prevents or attempts to prevent performance of a duty by the commissioner in connection with this chapter is subject to a civil penalty of up to $7,500 per day of violation as determined by the court.
In an action to compel performance of an order of the commissioner to enforce this chapter, the court must require a defendant adjudged responsible to perform the acts within the person's power that are reasonably necessary to accomplish the purposes of the order.
The civil penalties and payments provided for in this section may be recovered by a civil action brought by the county attorney or the attorney general in the name of the state.
Except as provided in subdivisions 2 and 3, a person is guilty of a misdemeanor if the person violates this chapter or an order, standard, citation, stipulation, agreement, or schedule of compliance of the commissioner, or impedes, hinders, or otherwise prevents, or attempts to prevent the commissioner or a duly authorized agent in performance of a duty in connection with this chapter. Unless otherwise specified in this chapter, each separate violation is a separate offense, except that in the case of a violation through continuing failure or neglect to obey this chapter, each day the failure or neglect continues is a separate offense.
A person is guilty of a gross misdemeanor if the person violates this chapter or an order, standard, stipulation, agreement, or schedule of compliance of the commissioner and the violation endangers humans or animals.
A person is guilty of a gross misdemeanor if the person knowingly violates this chapter or an order, standard, stipulation, agreement, or schedule of compliance of the commissioner.
If the commissioner finds probable cause to believe that any food, animal, or consumer commodity is being distributed in violation of this chapter or rules under this chapter, or is adulterated or so misbranded as to be dangerous or fraudulent, the commissioner shall affix to the food, animal, or consumer commodity a tag, withdrawal from distribution order, or other appropriate marking giving notice that the food, animal, or consumer commodity is, or is suspected of being, adulterated, misbranded, or distributed in violation of this chapter, and has been detained or embargoed, and warning all persons not to remove or dispose of the food, animal, or consumer commodity by sale or otherwise until permission for removal or disposal is given by the commissioner or the court. It is unlawful for a person to remove or dispose of a detained or embargoed food, animal, or consumer commodity by sale or otherwise without the commissioner's or a court's permission and each transaction is a separate violation of this subdivision.
A carcass; part of a carcass; meat or meat food product of an animal; or dead, dying, disabled, or diseased animal that is being transported in intrastate commerce, or is held for sale in this state after transportation in intrastate commerce, may be proceeded against, seized, and condemned if:
(1) it is or has been prepared, sold, transported, or otherwise distributed, offered, or received for distribution in violation of this chapter;
(2) it is usable as human food and is adulterated or misbranded; or
(3) it is in any other way in violation of this chapter.
The commissioner may act against the article or animal at any time on a complaint in the district court of the judicial district where the article or animal is found.
If food or an article or animal detained or embargoed under subdivision 1 has been found by the commissioner to be adulterated or misbranded or in violation of this chapter, the commissioner shall petition the district court in the county in which the food or animal is detained or embargoed for an order and decree for the condemnation of the food or animal. The commissioner shall release the food or animal when this chapter and rules adopted under this chapter have been complied with or the food or animal is found to be not adulterated or misbranded.
If the court finds that a detained or embargoed food or animal is adulterated, misbranded, or in violation of this chapter or rules adopted under this chapter, the following remedies are available:
(1) after entering a decree, the food or animal may be destroyed at the expense of the claimant under the supervision of the commissioner, and all court costs, fees, storage, and other proper expenses must be assessed against the claimant of the food or animal or the claimant's agent; and
(2) if adulteration or misbranding can be corrected by proper labeling or processing of the food or animal, the court, after entry of the decree and after costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that the food or animal must be properly labeled or processed, has been executed, may by order direct that the food or animal be delivered to the claimant for proper labeling or processing under the supervision of the commissioner. The expense of the supervision must be paid by the claimant. The food or animal must be returned to the claimant and the bond must be discharged on the representation to the court by the commissioner that the food or animal is no longer in violation and that the expenses for the supervision have been paid.
If the commissioner finds in any room, building, vehicle of transportation, or other structure any meat, seafood, poultry, vegetable, fruit, or other perishable articles of food that are unsound, or contain any filthy, decomposed, or putrid substance, or that may be poisonous or deleterious to health or otherwise unsafe, the commissioner shall condemn or destroy the item or in any other manner render the item as unsalable as human food, and no one has any cause of action against the commissioner on account of the commissioner's action.
If the governor declares an emergency order under section 12.31 and if the commissioner finds or has probable cause to believe that livestock, food, or a consumer commodity within a specific area is likely to be adulterated because of the emergency or so misbranded as to be dangerous or fraudulent, or is in violation of section 31.131, subdivision 1, the commissioner may embargo a geographic area that is included in the declared emergency. The commissioner shall provide notice to the public and to those with custody of the product in as thorough a manner as is practicable under the emergency circumstances.
The commissioner may, for the purposes of this chapter:
(1) gather and compile information concerning and investigate the organization, business, conduct, practices, and management of a person in intrastate commerce and the person's relation to other persons; and
(2) require, by general or special orders, a person, persons, or a class of persons engaged in intrastate commerce to file with the commissioner, in the form the commissioner prescribes, annual and special reports or answers in writing to specific questions, giving the commissioner the information the commissioner requires about the organization, business, conduct, practices, management, and relation to other persons, of the person filing the reports or answers. The reports and answers must be made under oath, or otherwise, as the commissioner prescribes, and filed with the commissioner within a reasonable time the commissioner prescribes, unless additional time is granted by the commissioner.
(a) For purposes of this chapter, the commissioner must at all reasonable times be allowed to examine and copy documentary evidence of a person being investigated or proceeded against. The commissioner may subpoena witnesses and require the production of documentary evidence of a person relating to any matter under investigation. The commissioner may sign subpoenas, administer oaths and affirmations, examine witnesses, and receive evidence.
(b) Attendance of witnesses and the production of documentary evidence may be required at a designated hearing place. In case of disobedience to a subpoena, the commissioner may invoke the aid of the district court to require the attendance and testimony of witnesses and the production of documentary evidence.
(c) The district court, in case of refusal to obey a subpoena issued to a person, may issue an order requiring the person to appear before the commissioner or to produce documentary evidence if ordered, or to give evidence touching the matter in question. Failure to obey the order of the court may be punishable by the court as a contempt.
(d) Upon the application of the attorney general at the request of the commissioner, the district court may order a person to comply with this chapter or an order of the commissioner made under this chapter.
(e) The commissioner may order testimony to be taken by deposition in a proceeding or investigation pending under this chapter at any state of the proceeding or investigation. Depositions may be taken before a person designated by the commissioner and having power to administer oaths. The testimony must be reduced to writing by the person taking the deposition or under the person's direction and must then be signed by the witness. A person may be compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the commissioner.
(f) Witnesses summoned before the commissioner may be paid the same fees and mileage that are paid witnesses in the district courts. Witnesses whose depositions are taken and the persons taking them may be entitled to the fees that are paid for those services in the district court.
(g) A person is not excused from attending and testifying or from producing books, papers, schedules of charges, contracts, agreements, or other documentary evidence before the commissioner or in obedience to the subpoena of the commissioner whether the subpoena is signed or issued by the commissioner or the commissioner's agent, or in any cause or proceeding, criminal or otherwise, based upon or growing out of an alleged violation of this chapter because the testimony or evidence, documentary or otherwise, required of the person may tend to incriminate the person or subject the person to a penalty or forfeiture. No person may be prosecuted or subjected to a penalty or forfeiture on account of a matter concerning which the person is compelled, after having claimed a privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that a witness is not exempt from prosecution and punishment for perjury committed in testifying.
(a) A person who neglects or refuses to attend and testify, to answer a lawful inquiry, or to produce documentary evidence, if it is in the person's power to do so in obedience to the subpoena or lawful requirement of the commissioner, is guilty of a misdemeanor.
(b) A person who willfully:
(1) makes or causes to be made a false entry or statement of fact in a report required under this chapter;
(2) makes or causes to be made a false entry in an account, record, or memorandum kept by a person subject to this chapter;
(3) neglects or fails to make or to cause to be made full and correct entries in the accounts, records, or memoranda of all facts and transactions relating to the person's business;
(4) leaves the jurisdiction of this state;
(5) mutilates, alters, or by any other means falsifies documentary evidence of a person subject to this chapter; or
(6) refuses to submit to the commissioner, for inspection and copying, any documentary evidence of a person subject to this chapter in the person's possession or control, is guilty of a misdemeanor.
(c) A person required by this chapter to file an annual or special report who fails to do so within the time fixed by the commissioner for filing the report and continues the failure for 30 days after notice of failure to file, is guilty of a misdemeanor.
(d) An officer or employee of this state who makes public information obtained by the commissioner without the commissioner's authority, unless directed by a court, is guilty of a misdemeanor.
Official Publication of the State of Minnesota
Revisor of Statutes