New York Agriculture & Markets Law
Declaration of Policy
1. 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. Regulations pertaining to sanitary requirements, production, processing, all labeling requirements, and distribution of frozen desserts products which are uniform and uniformily enforced are essential for the protection of consumers and the economic well being of the dairy industry. It is further declared that advances in food technology have resulted in the development of products similar to frozen desserts, including such products having a lower butterfat content and products made with oils or fats other than butterfat and with solids not fat from sources other than dairy products and that such products are recognized as wholesome and nutritious articles of food; that such products are similar in appearance, odor or taste and are difficult to differentiate from frozen desserts made with dairy products. 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, to eliminate needless duplication of inspection and conflicting and diverse requirements by various agencies, and by providing for rules and regulations which will effect their orderly marketing and insure uniform sanitary standards and enforcement.
2. For the purpose of this article and for any rules and regulations 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, ice milk, freezer made shakes, fruit sherbert, water ice, quiescently frozen confection, quiescently frozen dairy confection, manufactured desserts mix, frozen confection, mellorine frozen dessert 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 frozen desserts are customarily prepared or frozen, whether made with dairy products or non-dairy products.
3. a. "Person" means and includes any individual, copartnership, corporation, cooperative association, cooperative corporation, or unincorporated association.
b. "Plant" means any single location or mobile manufacturing unit which manufactures frozen desserts.
4. Rules and regulations.
(a) The commissioner shall, after public hearing, promulgate definitions and standards for frozen desserts including those made with dairy products, those not made with dairy products and those which are similar in appearance, odor or taste to such products or are prepared or frozen as frozen desserts are customarily prepared or frozen, together with rules and regulations for the packaging and all labeling requirements for all such products, and other conditions relating to the wholesale manufacture, processing, packaging, distribution and sale at wholesale of all such products; including, but not limited to, sanitization pertaining to manufacture, processing, handling, distribution, buildings, grounds, equipment, personnel and pasteurization or heat treatment of frozen desserts or ingredients. No municipality or county may impose any regulation or standard for frozen desserts different from those provided herein or by regulations promulgated hereunder. No municipality or county may require the inspection of frozen dessert plants beyond its borders and shall accept the certification of the commissioner that such plants conform to this act and the rules and regulations promulgated hereunder, unless there is substantial reason to believe that a manufacturer of frozen desserts, offered for sale in such county or municipality, is not in substantial compliance with the requirements of this article or the regulations promulgated pursuant thereto.
(b) Following any hearing to consider definitions and standards or rules and regulations, pursuant to paragraph (a) of this subsection, the commissioner shall issue a recommended decision and shall afford interested parties an opportunity to file exceptions to such recommended decision based upon the facts in the hearing record. After full consideration has been given to such exceptions, a final decision shall be made.
(c) No person shall manufacture, distribute or sell in this state a frozen dessert for which a definition and standard has not been promulgated pursuant to this article.
(d) Any person who desires to manufacture, distribute or sell in this state, any frozen dessert for which a definition and standard has not been promulgated by the commissioner pursuant to this section, shall first make application to the commissioner for the promulgation of a definition and standard for such proposed frozen dessert. Such application shall include the essential details of such proposed definition and standard. Upon the receipt of such an application, the commissioner shall call a public hearing for the purpose of considering such proposed definition and standard. In determining whether or not such proposed definition and standard shall be promulgated, the commissioner shall consider, among other things, the following:
1. Is the proposed product a frozen dessert as provided pursuant to the provisions of subdivision two of this section? 2. Is the proposed frozen dessert substantially different from other frozen desserts for which definitions and standards have already been promulgated by the commissioner? 3. Is it in the public interest to promulgate such proposed definition and standard? 4. Will the promulgation of such proposed definition and standard be advantageous to consumers and not result in a lowering of health standards or promote fraud and deception? Following the hearing to consider any such proposed definition and standard, the commissioner shall issue a recommended decision as provided pursuant to paragraph (b) of subdivision four of this section, either adopting, modifying, or denying the proposed definition and standard, giving interested parties an opportunity to file exceptions, within thirty days, to such recommended decision based upon the facts in the hearing record, and after full consideration has been given to any such exceptions, a final decision shall be made.