1     
UTAH WHOLESOME FOOD ACT AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Keven J. Stratton

5     
Senate Sponsor: Ralph Okerlund

6     

7     LONG TITLE
8     Committee Note:
9          The Natural Resources, Agriculture, and Environment Interim Committee
10     recommended this bill.
11     General Description:
12          This bill amends provisions of the Utah Wholesome Food Act.
13     Highlighted Provisions:
14          This bill:
15          ▸     defines terms;
16          ▸     designates "produce" as adulterated if it is in violation of certain provisions of the
17     Federal Food Safety Modernization Act;
18          ▸     expands the definition of "food establishment" to include farms;
19          ▸     allows an authorized agent of the Department of Agriculture and Food to enter a
20     farm for inspections under certain circumstances;
21          ▸     provides that carriers are subject to regulation under the Utah Wholesome Food
22     Act; and
23          ▸     makes technical changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:
29     AMENDS:
30          4-5-102, as renumbered and amended by Laws of Utah 2017, Chapter 345
31          4-5-103, as renumbered and amended by Laws of Utah 2017, Chapter 345
32          4-5-105, as renumbered and amended by Laws of Utah 2017, Chapter 345
33          4-5-501, as last amended by Laws of Utah 2017, Chapter 42 and renumbered and
34     amended by Laws of Utah 2017, Chapter 345 and last amended by Coordination
35     Clause, Laws of Utah 2017, Chapter 345
36     

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