Representative Keven J. Stratton proposes the following substitute bill:


1     
UTAH WHOLESOME FOOD ACT AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Keven J. Stratton

5     
Senate Sponsor: Margaret Dayton

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions of the Utah Wholesome Food Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     adds definitions;
13          ▸     designates "produce" as adulterated if it is in violation of certain provisions of the
14     Federal Food Safety Modernization Act;
15          ▸     expands the definition of "food establishment" to include farms;
16          ▸     allows an authorized agent of the Department of Agriculture and Food to enter a
17     farm for inspections under certain circumstances;
18          ▸     provides that carriers are subject to regulation under the Utah Wholesome Food
19     Act; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          4-5-102, as renumbered and amended by Laws of Utah 2017, Chapter 345
28          4-5-103, as renumbered and amended by Laws of Utah 2017, Chapter 345
29          4-5-105, as renumbered and amended by Laws of Utah 2017, Chapter 345
30          4-5-501, as last amended by Laws of Utah 2017, Chapter 42 and renumbered and
31     amended by Laws of Utah 2017, Chapter 345 and last amended by Coordination
32     Clause, Laws of Utah 2017, Chapter 345
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 4-5-102 is amended to read:
36          4-5-102. Definitions.
37          As used in this chapter:
38          (1) "Advertisement" means a representation, other than by labeling, made to induce the
39     purchase of food.
40          (2) (a) "Color additive":
41          (i) means a dye, pigment, or other substance not exempted under the federal act that,
42     when added or applied to a food, is capable of imparting color; and
43          (ii) includes black, white, and intermediate grays.
44          (b) "Color additive" does not include a pesticide chemical, soil or plant nutrient, or
45     other agricultural chemical which imparts color solely because of its effect, before or after
46     harvest, in aiding, retarding, or otherwise affecting, directly or indirectly, the growth or other
47     natural physiological process of any plant life.
48          (3) (a) "Consumer commodity" means a food, as defined by this act, or by the federal
49     act.
50          (b) "Consumer commodity" does not include:
51          (i) a commodity subject to packaging or labeling requirements imposed under the
52     Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sec. 136 et seq.;
53          (ii) a commodity subject to Title 4, Chapter 16, Utah Seed Act;
54          (iii) a meat or meat product subject to the Federal Meat Inspection Act, 21 U.S.C. Sec.
55     601 et seq.;
56          (iv) a poultry or poultry product subject to the Poultry Inspection Act, 21 U.S.C. Sec.
57     451 et seq.;
58          (v) a tobacco or tobacco product; or
59          (vi) a beverage subject to or complying with packaging or labeling requirements
60     imposed under the Federal Alcohol Administration Act, 27 U.S.C. Sec. 201 et seq.
61          (4) "Contaminated" means not securely protected from dust, dirt, or foreign or
62     injurious agents.
63          (5) (a) "Farm" means an agricultural operation, under management by one entity, that
64     grows or harvests crops.
65          (b) "Farm" does not include an entity that is exempt under 21 C.F.R. 112.4(a), 21
66     C.F.R. 112.5, or 21 C.F.R. 117.3.
67          [(5)] (6) "Farmers market" means a market where producers of food products sell only
68     fresh, raw, whole, unprocessed, and unprepared food items directly to the final consumer.
69          [(6)] (7) "Federal act" means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
70     Sec. 301 et seq.
71          [(7)] (8) "Food" means:
72          (a) an article used for food or drink for human or animal consumption or the
73     components of the article;
74          (b) chewing gum or its components; or
75          (c) a food supplement for special dietary use which is necessitated because of a
76     physical, physiological, pathological, or other condition.
77          [(8)] (9) (a) "Food additive" means a substance, the intended use of which results in the
78     substance becoming a component, or otherwise affecting the characteristics, of a food.
79          (b) (i) "Food additive" includes a substance or source of radiation intended for use in
80     producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or
81     holding food.
82          (ii) "Food additive" does not include:
83          (A) a pesticide chemical in or on a raw agricultural commodity;
84          (B) a pesticide chemical that is intended for use or is used in the production, storage, or
85     transportation of a raw agricultural commodity; or
86          (C) a substance used in accordance with a sanction or approval granted pursuant to the
87     Poultry Products Inspection Act, 21 U.S.C. Sec. 451 et seq. or the Federal Meat Inspection Act,
88     21 U.S.C. Sec. 601 et seq.
89          [(9)] (10) (a) "Food establishment" means a grocery store, bakery, candy factory, food
90     processor, bottling plant, sugar factory, cannery, farm, rabbit processor, meat processor, flour
91     mill, cold or dry warehouse storage, or other facility where food products are manufactured,
92     canned, processed, packaged, stored, transported, prepared, sold, or offered for sale.
93          (b) "Food establishment" does not include:
94          (i) a dairy farm, a dairy plant, or a meat establishment, which is subject to the Poultry
95     Products Inspection Act, 21 U.S.C. Sec. 451 et seq., or the Federal Meat Inspection Act, 21
96     U.S.C. Sec. 601 et seq.; or
97          (ii) a farmers market.
98          [(10)] (11) "Label" means a written, printed, or graphic display on the immediate
99     container of an article of food.
100          [(11)] (12) "Labeling" means a label and other written, printed, or graphic display:
101          (a) on an article of food or its containers or wrappers; or
102          (b) accompanying the article of food.
103          [(12)] (13) "Official compendium" means the official documents or supplements to the:
104          (a) United States Pharmacopoeia;
105          (b) National Formulary; or
106          (c) Homeopathic Pharmacopoeia of the United States.
107          [(13)] (14) (a) "Package" means a container or wrapping in which a consumer
108     commodity is enclosed for use in the delivery or display of the consumer commodity to retail
109     purchasers.
110          (b) "Package" does not include:
111          (i) package liners;
112          (ii) shipping containers or wrapping used solely for the transportation of consumer
113     commodities in bulk or in quantity to manufacturers, packers, processors, or wholesale or retail
114     distributors; or
115          (iii) shipping containers or outer wrappings used by retailers to ship or deliver a
116     consumer commodity to retail customers, if the containers and wrappings bear no printed
117     information relating to the consumer commodity.
118          [(14)] (15) (a) "Pesticide" means a substance intended:
119          (i) to prevent, destroy, repel, or mitigate a pest, as defined under Subsection
120     4-14-102(20); or
121          (ii) for use as a plant regulator, defoliant, or [desicant] desiccant.
122          (b) "Pesticide" does not include:
123          (i) a new animal drug, as defined by 21 U.S.C. Sec. 321, that has been determined by
124     the United States Secretary of Health and Human Services not to be a new animal drug by
125     federal regulation establishing conditions of use of the drug; or
126          (ii) animal feed, as defined by 21 U.S.C. Sec. 321, bearing or containing a new animal
127     drug.
128          [(15)] (16) "Principal display panel" means that part of a label that is most likely to be
129     displayed, presented, shown, or examined under normal and customary conditions of display
130     for retail sale.
131          (17) "Produce" means a food that is a:
132          (a) fruit, vegetable, mix of intact fruits and vegetables, mushroom, sprout from any
133     seed source, peanut, tree nut, or herb; and
134          (b) raw agricultural commodity.
135          [(16)] (18) "Raw agricultural commodity" means a food in its raw or natural state,
136     including all fruits that are washed, colored, or otherwise treated in their unpeeled, natural form
137     prior to marketing.
138          [(17)] (19) "Registration" means the issuance of a certificate by the commissioner to a
139     qualified food establishment.
140          (20) "Sprout" means the shoot of a plant generally harvested when cotyledons are
141     undeveloped or underdeveloped and mature leaves have not emerged.
142          Section 2. Section 4-5-103 is amended to read:
143          4-5-103. Adulterated food specified.
144          (1) A food is adulterated:
145          [(1)] (a) if it bears or contains [any] a poisonous or deleterious substance in a quantity
146     that may ordinarily render it injurious to health; [but in case the substance is not an added
147     substance the food may not be considered adulterated under this Subsection (1)(a) if the
148     quantity of the substance in such food does not ordinarily render it injurious to health;]
149          (b) [(i)] if it bears or contains [any] an added poisonous or added deleterious substance
150     [other than one that is: (A) a pesticide chemical in or on a raw agricultural commodity; (B) a
151     food additive; or (C) a color additive] that is unsafe within the meaning of Subsection
152     4-5-204(1); [or]
153          [(ii)] (c) except as provided in Subsection (3), if it is a raw agricultural commodity and
154     it bears or contains a pesticide chemical that is unsafe within the meaning of 21 U.S.C. Sec.
155     346a; [or]
156          [(iii)] (d) if it is [or it], bears, or contains [any] a food additive that is unsafe within the
157     meaning of 21 U.S.C. Sec. 348; [provided that where a pesticide chemical has been used in or
158     on a raw agricultural commodity in conformity with an exemption granted or tolerance
159     prescribed under 21 U.S.C. 346a and the raw agricultural commodity has been subjected to
160     processing such as canning, cooking, freezing, dehydrating, or milling the residue of such
161     pesticide chemical remaining in or on such processed food shall, notwithstanding the
162     provisions of Section 4-5-204 and this Subsection (1)(b)(iii), not be considered unsafe if such
163     residue in or on the raw agricultural commodity has been removed to the extent possible in
164     good manufacturing practice, and the concentration of such residue in the processed food when
165     ready to eat is not greater than the tolerance prescribed for the raw agricultural commodity;]
166          [(c)] (e) if it consists in whole or in part of a diseased, contaminated, filthy, putrid, or
167     decomposed substance[, or];
168          (f) if it is otherwise unfit for food;
169          [(d)] (g) if it has been produced, prepared, packed, or held under unsanitary conditions
170     whereby it may have:
171          (i) become contaminated with filth[,]; or [whereby it may have]
172          (ii) been rendered diseased, unwholesome, or injurious to health;
173          [(e)] (h) if it is, in whole or in part, the product of:
174          (i) a diseased animal [or];
175          (ii) an animal that has died [otherwise] other than by slaughter[,]; or [of]
176          (iii) an animal that has been fed upon the uncooked offal from a slaughterhouse;
177          [(f)] (i) if its container is composed, in whole or in part, of [any] a poisonous or
178     deleterious substance that may render the contents injurious to health;
179          [(g)] (j) if it has been intentionally subjected to radiation, unless the use of the radiation
180     was in conformity with a rule or exemption in effect pursuant to Section 4-5-204, or 21 U.S.C.
181     Sec. 348; [or]
182          [(h)] (k) [in] if the food is a meat or meat [products are adulterated] product, and:
183          (i) [if such products are in casings, packages, or wrappers] the product is in a casing,
184     package, or wrapper:
185          (A) through which [any] a part of their contents can be seen; and
186          (B) which, or the markings of which, are colored [red or any other color] so as to be
187     misleading or deceptive with respect to the color, quality, or kind of [such products] product to
188     which [they are] the color is applied; or
189          (ii) [if such products contain or bear any] the product contains or bears a color additive;
190          (l) if the food is produce and is in violation of a provision of 21 C.F.R. Part 112;
191          [(2) (a) if any] (m) if a valuable constituent has been, in whole or in part, omitted or
192     abstracted [therefrom; (b) if any] from a product and a substance has been substituted wholly
193     or in part [therefor];
194          [(c)] (n) if damage or inferiority has been concealed [in any manner; or];
195          [(d)] (o) if [any] a substance has been added [or], mixed, or packed [therewith] with a
196     product so as to:
197          (i) increase its bulk or weight[, or];
198          (ii) reduce its quality or strength; or
199          (iii) make it appear better or of greater value than it is; or
200          [(3)] (p) if [it] the food is confectionery, and:
201          [(a)] (i) has partially or completely imbedded [therein any] in the food a nonnutritive
202     object[; provided that this Subsection (3)(a) does not apply in the case of any nonnutritive
203     objective if, in the judgment of the department such object], unless the department determines
204     that the nonnutritive object is of practical functional value to the confectionery product and
205     would not render the product injurious or hazardous to health;
206          [(b)] (ii) bears or contains [any] alcohol, other than alcohol [not in excess of .05% by
207     volume] derived solely from the use of flavoring extracts, that does not exceed .05% by
208     volume; or
209          [(c)] (iii) bears or contains [any] a nonnutritive substance[; provided, that this
210     Subsection (3)(c) does not apply to], unless:
211          (A) it is a safe nonnutritive substance that is in or on confectionery [by reason of its use
212     for some] for a practical functional purpose in the manufacture, packaging, or storing of [such]
213     the confectionery [if]; and
214          (B) the use of the substance does not promote deception of the consumer or otherwise
215     result in adulteration or misbranding in violation of this chapter.
216          [(4)] (2) The department may, for the purpose of avoiding or resolving uncertainty as to
217     the application of Subsection [(3)(c)] (1)(p)(iii), issue rules allowing or prohibiting the use of a
218     particular nonnutritive [substances] substance.
219          (3) Notwithstanding the provisions of Section 4-5-204 and Subsection (1)(c), the
220     residue of a pesticide chemical remaining in or on a processed food is not considered unsafe if:
221          (a) the pesticide chemical has been used in or on a raw agricultural commodity in
222     conformity with an exemption granted or tolerance prescribed under 21 U.S.C. Sec. 346a;
223          (b) the residue of the pesticide chemical in or on the raw agricultural commodity has
224     been removed to the extent possible in good manufacturing practice;
225          (c) the raw agricultural commodity has been subjected to processing such as canning,
226     cooking, freezing, dehydrating, or milling; and
227          (d) the concentration of the residue in the processed food when ready to eat is no
228     greater than the tolerance prescribed for the raw agricultural commodity.
229          Section 3. Section 4-5-105 is amended to read:
230          4-5-105. Inspection of premises and records -- Authority to take samples --
231     Inspection results reported.
232          (1) An authorized agent of the department, upon presenting appropriate credentials to
233     the owner, operator, or agent in charge, may:
234          (a) enter at reasonable times [any] a factory, farm, warehouse, or establishment in
235     which food is manufactured, processed, packed, or held for introduction into commerce or after
236     introduction into commerce;
237          (b) enter [any] a vehicle being used to transport or hold food in commerce;
238          (c) inspect at reasonable times and within reasonable limits and in a reasonable manner
239     [any] a factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and
240     unfinished materials, containers, and labeling located within it;
241          (d) obtain samples necessary for the enforcement of this chapter [so long as] if the
242     department:
243          (i) pays the posted price for the sample if requested to do so; and
244          (ii) receives a signed receipt from the person from whom the sample is taken; and
245          (e) have access to and copy all records of carriers in commerce showing:
246          (i) the movement in commerce of [any] food;
247          (ii) the holding of food during or after movement in commerce; and
248          (iii) the quantity, shipper, and consignee of food.
249          (2) Evidence obtained under this section may not be used in a criminal prosecution of
250     the person from whom the evidence was obtained.
251          (3) Carriers [may not be] are subject to the other provisions of this chapter by reason of
252     their receipt, carriage, holding, or delivery of food in the usual course of business as carriers.
253          (4) [Upon completion of] After the inspection of a factory, warehouse, consulting
254     laboratory, or other establishment and [prior to] before leaving the premises, the authorized
255     agent making the inspection shall give [to] the owner, operator, or agent in charge a written
256     report [in writing setting forth] describing any conditions or practices observed by [him] the
257     agent during the inspection which, in [his] the agent's judgment, indicate that [any] a food in
258     the establishment:
259          (a) consists in whole or in part of [any] a filthy, putrid, or decomposed substance; or
260          (b) has been prepared, packed, or held under unsanitary conditions whereby it may
261     have become contaminated with filth or [whereby it may have] been rendered injurious to
262     health.
263          (5) A copy of the report required under Subsection (4) shall be sent promptly to the
264     department.
265          (6) If the authorized agent making the inspection of a factory, warehouse, or other
266     establishment has obtained [any] a sample in the course of the inspection, the agent shall give
267     to the owner, operator, or agent in charge:
268          (a) a receipt describing the samples obtained[.]; and
269          [(7) When in the course of the inspection the officer or employee making the
270     inspection obtains a sample of any food and] (b) if an analysis is made of the sample for the
271     purpose of ascertaining whether the food consists in whole or in part of [any] a filthy, putrid, or
272     decomposed substance or is otherwise unfit for food, a copy of the results of the analysis[ shall
273     be furnished promptly to the owner, operator, or agent in charge].
274          Section 4. Section 4-5-501 is amended to read:
275          4-5-501. Cottage food operations.
276          (1) For purposes of this chapter:
277          (a) "Cottage food operation" means a person who produces a cottage food product in a
278     home kitchen .
279          (b) "Cottage food product" means a non-potentially hazardous baked good, jam, jelly,
280     or other non-potentially hazardous food produced in a home kitchen.
281          (c) "Home kitchen" means a kitchen:
282          (i) designed and intended for use by the residents of a home; and
283          (ii) used by a resident of the home for the production of a cottage food product.
284          (d) "Potentially hazardous food" means:
285          (i) a food of animal origin;
286          (ii) raw seed sprouts; or
287          (iii) a food that requires time or temperature control, or both, for safety to limit
288     pathogenic microorganism growth or toxin formation, as identified by the department in rule.
289          (2) The department shall adopt rules pursuant to Title 63G, Chapter 3, Utah
290     Administrative Rulemaking Act, as necessary to protect public health and ensure a safe food
291     supply.
292          (3) Rules adopted pursuant to Subsection (2) may not require:
293          (a) the use of commercial surfaces such as stainless steel counters or cabinets;
294          (b) the use of a commercial grade:
295          (i) sink;
296          (ii) dishwasher; or
297          (iii) oven;
298          (c) a separate kitchen for the cottage food [production] operation; or
299          (d) the submission of plans and specifications before construction of, or remodel of, a
300     cottage food production operation.
301          (4) The operator of a cottage food [production] operation shall:
302          (a) register with the department as a cottage food [production] operation before
303     operating as a cottage food [production] operation;
304          (b) hold a valid food handler's permit; and
305          (c) package a cottage food product with a label, as specified by the department in rule.
306          (5) Notwithstanding the provisions of Subsections 4-5-301(1)(a) and (c), the
307     department shall issue a registration to an applicant for a cottage food [production] operation if
308     the applicant for the registration:
309          (a) pays the fees required by the department; and
310          (b) meets the requirements of this section.
311          (6) Notwithstanding the provisions of Section 26A-1-114, a local health department:
312          (a) does not have jurisdiction to regulate the production of food at a cottage food
313     [production] operation operating in compliance with this section, as long as the products are
314     not offered to the public for consumption on the premises; and
315          (b) does have jurisdiction to investigate a cottage food [production] operation in [any]
316     an investigation into the cause of a food [born] borne illness outbreak.
317          (7) A food service establishment as defined in Section 26-15a-102 may not use a
318     product produced in a cottage food [production] operation as an ingredient in [any] a food that
319     is prepared by the food establishment and offered by the food establishment to the public for
320     consumption.