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Introduced Version Senate Bill 320 History

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Key: Green = existing Code. Red = new code to be enacted

FISCAL NOTEWEST virginia legislature

2020 regular session

Introduced

Senate Bill 320

By Senators Sypolt, Maynard, Rucker, Tarr, Cline, Hamilton, and Jeffries

[Introduced January 13, 2020
to the Committee on Health and Human Resources]

A BILL to amend and reenact the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §19-38-1, §19-38-2, §19-38-3, §19-38-4, §19-38-5, §19-38-6, §19-38-7, and §19-38-8, all relating to agriculture; creating the West Virginia Farm Fresh Dairy Act; exempting certain sales from licensure and certification; providing definitions; providing conforming amendments; and providing for an effective date.

Be it enacted by the Legislature of West Virginia:    

ARTICLE 38. WEST VIRGINIA FARM FRESH DAIRY ACT.


§19-38-1. Short Title: The West Virginia Farm Fresh Dairy Act.


This article is known and may be cited as the “West Virginia Farm Fresh Dairy Act.”

§19-38-2. Definitions.


As used in this article:

“Delivery” means the transfer of a product resulting from a transaction between a producer and an informed end consumer.  The delivery may occur by the producer's designated agent at a farm, ranch, farmers market, home, office or any location agreed to between the producer and the informed end consumer;

“Farmers market” means as defined in §19-35-2(c) of this code;

“Home consumption” means milk or milk products consumed within a private home by family members, employees or nonpaying guests;

“Homemade” means food that is prepared in a private home or farm kitchen for eventual sale to a consumer;

“Informed end consumer” means a person who is the last person to purchase any raw milk product, who does not resell the product, and who has been informed that the product is not pasteurized;

“Producer” means any person who milks a dairy animal (cow, goat, or sheep) to obtain milk for direct sale or processing into a milk-based product that is intended for human consumption as food or drink;

“Raw milk” means FLUID milk sold for consumption in its natural state at the time of milking and that has not been pasteurized or homogenized;

“Raw milk Products” means any food product prepared from raw milk for human consumption including, but not necessarily limited to skim milk, cream, buttermilk, whey, butter, cheese, ice cream, and yogurt; and

“Transaction” means the exchange of buying and selling.

§19-38-3. West Virginia Farm Fresh Dairy Act; purpose; exemptions; assumption of risk.


(a) The purpose of the West Virginia Farm Fresh Dairy Act is to allow for the sale and consumption of homemade and farm fresh raw milk and raw milk products and to encourage the expansion of raw milk dairy sales by small farm producers and accessibility of their products to informed end consumers by:

(1) Permitting the limited purchase and consumption of farm fresh raw milk and dairy products made from raw milk;

(2) Expanding the agricultural economy and opening competitive markets for small dairy farms;

(3) Providing informed West Virginia consumers with unimpeded and convenient access to farm fresh raw milk and raw milk products from known sources; and

(4) Empowering the West Virginia Department of Agriculture to administer the West Virginia Farm Fresh Dairy Act and to register and inspect participating small dairy farms for compliance with the Act.

(b) Notwithstanding any other provisions of law or specific requirements of the West Virginia Farm Fresh Dairy Act, there shall be no licensure, permitting, or certification required by any agency of any political subdivision of the state which pertains to the preparation, serving, use, consumption or storage of raw milk or raw milk products under the West Virginia Farm Fresh Dairy Act. Nothing in this article shall preclude an agency from providing assistance, consultation or inspection, with the consent of the producer.

(c) Transactions under this section shall:

(1) Be directly and exclusively between the producer and the informed end consumer.  No consumer resale of farm fresh raw milk or raw milk products purchased under this article shall be permitted;

(2) Only be for home consumption by the informed end consumer;

(3) Occur only in West Virginia; and

(4) Not involve interstate commerce.

(d) Nothing in this article shall be construed to impede the West Virginia Department of Agriculture and/or Department of Health and Human Resources in any investigation and/or prosecution of a food borne illness that has been determined by a qualified physician to have been caused by a food-borne pathogen ingested from a food product sold under this article.

(e) Nothing in this article shall be construed to change the requirements for animal health inspections and/or any applicable vaccination requirements.

(f) Producers selling farm fresh foods in full compliance with the West Virginia Farm Fresh Dairy Act shall not be held liable for any consumer illness that may result from improper handling, storage, contamination, or use of the food product by the customer that occurs after the sale.

§19-38-4. Best Sanitary Milking and Milk Handling Practices.


All of the following milking and dairy herd practices shall be followed in the production of raw milk sold or processed into dairy products for human consumption in accordance with the West Virginia Farm Fresh Dairy Act.

(a) All dairy animals shall be milked in a fully enclosed structure or room with a concrete floor that is separated from indoor animal housing pens by a wall.  Any animal waste and/or spilled animal feed or soiled bedding debris, as may incidentally result from the milking operation, shall be swept or washed from the concrete flooring of the animal milking area or parlor as soon as practicable after each milking. For small animal milking herds (goats and/or sheep), the milking area may be housed in a fully enclosed room or accessory structure (such as, but not necessarily limited to a shed or garage) having a concrete or alternative durable, washable, and impervious, flooring surface, such as but not limited to tile or vinyl, as long as its integrity is properly maintained against routine animal traffic wear and tear.

(b) Prior to milking, each udder and teat of the dairy animal shall be cleaned using a sanitary wash or wipe.

(c) Prior to milking, a strip test of milk from each teat shall be performed to check for possible milk infections. If the strip test results indicate that the animal’s milk is clotted and/or bloody, no milk from that animal shall be sold or processed until the animal has been determined to be healthy and subsequently produces a clean strip test.

(d) Each dairy animal shall be milked using a fully sealed and self-contained mechanical or hand-operated vacuum system that conveys all milk directly from the teat via hoses to a glass, FDA approved food grade plastic, or stainless-steel receiving vessel.

(e) After a dairy animal has been milked, a sanitary teat wash or dip shall be applied to each teat before the animal is released from the milking stand, stanchion, or parlor.

(f) All milk collected in a self-contained milking system shall be subsequently strained (using a sanitary strainer material) when transferred to a sanitized container for eventual consumer sale and stored in a cooling device that will effectively reduce the temperature of the milk to 40 degrees Fahrenheit or less within two hours after milking is complete.

(g) All milk handling components shall be thoroughly cleaned and sanitized as soon as practicable after each milking.

(h) Any and all raw milk intended for sale under the West Virginia Farm Fresh Dairy Act shall be stored in a refrigeration device or system that will maintain the temperature of the milk between 35 degrees and 40 degrees Fahrenheit until the date of sale.

(i) Any dairy animal determined to be ill with a disease or infection that could be contagious to the rest of the herd and/or would materially impair the natural quality of the milk produced shall be housed in a separate holding pen or facility (such as a designated quarantine or recovery pen) from the rest of the herd and not milked until the illness has been treated and the animal has fully recovered. No milk incidentally or accidentally produced from any such ill dairy animal shall be processed or sold from the farm.

(j)  All dairy animals shall be fed water from a clean, potable water source. All hay shall be stored in a dry location, and all pelletized feed shall be stored in a dry location and in a storage container that effectively restricts pest infestation.

§19-38-5. Registration and required permits.


(a) All producers wishing to sell raw milk and/or raw milk products shall first register with the West Virginia Department of Agriculture, providing the name of the farm, the name of the proprietor or primary operator, the mailing/physical address of the farm, a daytime contact telephone number, and the e-mail, website, and/or facebook address of the farm, the specific milk products to be sold, and the type and number of milking animals in the producing herd. The producer shall be responsible for updating the registration information with the Department of Agriculture within 10 days of any changes to the required information.

(b) Prior to selling any raw milk or producing any authorized raw milk product for consumer sale, every producer shall request an inspection by the Department of Agriculture to establish the producer’s compliance with all applicable requirements of the West Virginia Farm Fresh Dairy Act, to ensure producer understanding of the applicable administration and penalty provisions, and to work with the inspector to identify and evaluate potential sanitary and health safety concerns regarding the producer’s proposed milk handling and processing operation. The Inspector may make a written or e-mail note of his or her concerns to which the producer must respond in writing or by e-mail with proposed measures to address the Inspector’s concerns, prior to authorization by the Department of Agriculture to commence sales of the intended raw milk or raw milk products.  In the event that the sanitary or health safety concerns affect only one discrete element of the producer’s operation, the Department of Agriculture may authorize commencement of the producer’s operation limited exclusively to those elements of the operation not affected by the unremedied sanitary and/or health safety concerns, until such time as the producer has submitted an acceptable measure to address or an acceptable response to refute the applicable concerns.

(c) Prior to preparing and/or selling any authorized raw milk products, each producer shall obtain a valid WV Food Handlers card from the WV Department of Health and Human Resources.     The Department of Agriculture shall inspect the raw milk production facilities as part of the initial inspection prior to the processing and sale of raw milk products, as required by subsection (b) of this section.

§19-38-6. Administration, violations, and penalties.


(a) The West Virginia Department of Agriculture shall conduct annual prescheduled inspections of a raw milk dairy farm operation to ensure compliance with all required Best Sanitary Milking and Milk Handling Practices or other applicable provisions of the West Virginia Farm Fresh Diary Act. Such inspections may be conducted during the producer’s standard milking times to ensure compliance with all applicable milking and milk handling requirements. The West Virginia Department of Agriculture also may conduct more frequent prescheduled follow-up inspections as may be deemed necessary in accordance with subsections (b) and (c) of this section to address any violations of the aforementioned requirements and provisions or until full compliance has been determined.

(b) If, during the course of a farm inspection, an inspector has determined that a producer has violated one or more of the Best Sanitary Milking and Milk Handling requirements specified in §19-38-4 of this code, the Department of Agriculture may, at its discretion and based on the severity of the violation, require the producer to comply with any or all of the following corrective measures:

(1) For a first violation:

(A) Attend a routine or special compliance training class to be scheduled and conducted by the Department of Agriculture for a reasonable training fee to be established by the Department;

(B) Suspend all sales of raw milk and milk products by the producer for not more than three consecutive weeks or until the violation has been corrected as determined by a follow-up inspection (whichever is less). Any follow-up inspection(s) conducted by the Department of Agriculture to confirm a violation has been remedied shall be conducted on or before expiration of the raw milk sales suspension.

(C) Compel the producer to submit to and pass not more than four additional periodic inspections within one year of the date that the violation first occurred.

(2) For repeat violations:

(A) Any or all corrective measures specified in subsection (b) subdivision (1) of this section;

(B) Pay a fine of $50 for each documented inspection violation of the act, but not more than $500 for all documented violations in any single inspection; and

(C) If livestock illness is a suspected concern, the producer may be required to hire a veterinarian to certify the health condition of the milking herd.

(c) If an investigation by the Department of Health or the Department of Agriculture determines that a producer’s milk or milk product has caused a food-borne pathogen illness to occur, or that a producer has falsified required registration information or materially interfered with any food-borne pathogen investigation, the following corrective measures and penalties may be imposed by the Commissioner of Agriculture on the producer:

(1) For a suspected, but not confirmed customer illness caused by the producer’s milk, the Commissioner of Agriculture may, at his/her discretion, temporarily suspend all sales of raw milk and milk products by the producer until the source of the contamination has been determined, not to exceed 30 consecutive days. Any follow-up inspection(s) conducted by the Department of Agriculture to confirm the violation has been remedied shall be conducted on or before expiration of the raw milk sales suspension;

(2) If a food-borne pathogen illness is confirmed to have been caused by a producers milk or milk products, or a producer has falsified information or testimony or otherwise obstructed or interfered with an investigation of a food-borne pathogen incident, the violations shall be prosecuted and penalties assigned to the producer in accordance with the procedures specified in §19-11E-10 through §19-11E-15 of this code, inclusive. As an element of required remedial actions, the Commissioner of Agriculture may require the producer to submit to the WV Department of Agriculture two samples of blended, unpasteurized raw milk from the producer’s active milking herd for testing at his/her own expense. The required samples must be obtained on different days taken prior to authorized resumption of raw milk sales and/or raw milk products for sale. The blended milk samples shall be determined by the WV Department of Agriculture to comply with the bacterial, somatic cell, and coliform counts/levels required by the Grade A Pasteurized Milk Ordinance, as amended, for raw milk that is to be pasteurized.

§19-38-7. Product sales requirements and standards.


The sale of raw milk and raw milk products shall be permitted where all of the following sale requirements are satisfied by each producer:

(a) Raw milk sales shall not exceed 80 gallons per day;

(b) Sales of raw milk products (encompassing, but not limited to, butter, cheese, ice cream, and yogurt) shall not exceed 40 pounds per day;

(c) All milk sold shall be produced in full compliance with the Best Sanitary Milking and Milk Handling Practices specified in §19-38-4 of this code;

(d) All fluid raw milk shall be sold to a consumer within three days from the date of milking.  The processing of any raw milk product intended for sale under this article shall commence within three days from the milking date of the fluid raw milk;

(e) All milk products sold shall be labeled, in a form required by U.S. Food and Drug Administration guidelines, to identify the producer, provide a physical address and contact information, state the date upon which the milk or milk product was produced, net quantity of contents in both U.S. and metric measures, the common name of the hooved animal producing the milk or milk product, and clearly state that the milk contained has been prepared in compliance with all Best Sanitary Milking and Milk Handling Practices, but is not processed, licensed, or certified by any State or Federal Agency.  For all processed products prepared with raw milk, the labeling shall also list all ingredients in order from most to least by weight and list any potential allergens that the produce may contain;

(f) All producers shall make available and offer each customer specific written Safe Raw Milk Handling and Use guidelines stating, at a minimum, that raw milk should always be kept in a presanitized container and refrigerated at a temperature between 35 and 40 degrees; not left to sit unrefrigerated for periods of time longer than may be necessary for immediate use; should be consumed or used not more than seven days from the date of purchase, and should be disposed and not used or consumed if incidentally or accidentally contaminated by the consumer.  The guidelines shall also include a statement that pregnant women and customers with weakened immune systems should consult a qualified physician prior to consuming raw milk or milk products.  The producer may add any further handling and use guidelines that may be deemed necessary, in consultation with his/her insurance provider, to address specific liability concerns. The guidelines may further state that the producer assumes no liability for illness that is caused by improper handling and use by the customer;

(g) The producer shall offer and afford any potential customer an opportunity to schedule a tour/inspection of the producer’s farm, animal housing, milking operation, and/or milk processing operation prior to purchase of any raw milk or milk product under this act. The producer shall, as a minimum requirement of each tour, specifically explain and demonstrate how his/her operation complies with each of the required Best Sanitary Milking and Milk Handling Practices outlined in §19-38-4 of this code and either provide a printed copy of those requirements or permanently post a printed copy of those requirements in the milking area/room, which shall be replaced as may be necessary to ensure legibility against fading and wear and tear; and

(h) Any formal agreement or contract for raw milk or milk product sales between a producer and customer shall include and state (affirm) the producer’s compliance with the Best Sanitary Milking and Milk Handling Practices outlined in §19-38-4 of this code.

§19-38-8. Effective date.


This act is effective immediately upon completion of all acts necessary for a bill to become law as provided by the West Virginia Constitution.

 

 

NOTE: The purpose of this bill is to create the West Virginia Farm Fresh Dairy Act.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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