Senate Bill No. 368
(By Senators Anderson, Ross, Helmick, Bailey and Sharpe)
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[Introduced February 2, 1998; referred to the Committee
on Agriculture; and then to the Committee on Finance.]
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A BILL to amend and reenact article ten-a, chapter nineteen of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended, relating to creating the West Virginia egg
marketing law of 1998; providing a purpose; definitions;
requiring permits and registration; exemptions; container
requirements; standards, grades and weight classes; acts which
are prohibited; requiring certain labels and furnishing of
invoices; advertising required for certain quality eggs;
powers and duties of the commissioner of agriculture;
requirements of egg handling facilities; authorizing entry of
facilities by commissioner; providing civil and criminal
penalties for violations; requiring commissioner to cooperate
with other entities; and prohibiting commissioner from
divulging trade secrets.
Be it enacted by the Legislature of West Virginia:
That article ten-a, chapter nineteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 10A. THE WEST VIRGINIA EGG MARKETING LAW OF 1998.
§19-10A-1. Purpose; and short title.
The intent of this article is to protect and promote the
public health and general welfare and to prevent fraud and
deception in the production, processing, sale and distribution of
eggs. This article provides for the registration of business
houses engaged in selling, trading or traffic of eggs; establishes
standards for the grading, classification and marketing of eggs;
provides a penalty for the failure to comply with the provisions of
this article; and for other purposes. This article shall be known
as "The West Virginia Egg Marketing Law of 1998." All laws and
parts of laws in conflict with this article are hereby repealed.
Except where otherwise indicated, it is the intent of the
Legislature that this article substantially conform with the
federal laws and regulations promulgated under the auspices of the
United States secretary of agriculture and the United States
Secretary of health and human services in order to provide movement
of eggs in intrastate and interstate commerce with a minimum of
economic barriers.
§19-10A-2. Definitions.
(a) "Ambient temperature" means the atmospheric temperature
surrounding or encircling shell eggs.
(b) "Candle" means to determine the interior quality based on
the use of a candling light as defined in the U.S. Standards.
(c) "Case" means a container that is not a carton and that is
used to pack eggs for distribution or sale to the consumer. A case
may contain either loose or cartoned eggs.
(d) "Commissioner" means the commissioner of agriculture for
the state of West Virginia or his or her duly authorized agent.
(e) "Container" means any carton, basket, case, cart, pallet
or other receptacle.
(f) "Consumer" means any person using eggs for food and shall
include restaurants, hotels, cafeterias, hospitals, state
institutions, and any other establishment serving food to be
consumed or produced on the premises, but shall not include the
armed forces or any other federal agency or institution.
(g) "Denatured" means rendering unfit for human food by
treatment or
the addition of a foreign substance as approved by the
United States department of agriculture (USDA), agriculture
marketing service (AMS), administrator.
(h) "Distributor" means a person or firm engaged in the
business of buying eggs from producers or other persons on his own
account and selling or transferring eggs to other distributors or
retailers. A distributor further means a person or firm engaged in producing eggs from his or her own flock and marketing of any
portion of this production on a graded basis.
(i) "Egg" means the product of the domesticated chicken hen or
any other eggs offered for sale for human consumption.
(j) "Embargo" means a written stop sale order issued by the
commissioner of agriculture prohibiting the sale, use of or
transportation of eggs in any manner until the embargo is released
by the commissioner.
(k) "General embargo" means a statewide written stop sale
order issued by the commissioner of agriculture prohibiting the
sale, use of, or transportation of eggs in any manner until the
embargo is released by the commissioner.
(l) "Graded egg" means an egg which is classified in
accordance with the standards established by the United States
department of agriculture.
(m) "Inedible" and "unfit for human food" means eggs
described as black rots, yellow rots, white rots, mixed rots
(addled eggs), sour eggs, eggs with green whites, eggs with stuck
yolks, moldy eggs, musty eggs, eggs showing blood rings, eggs
containing embryo chicks (at or beyond the blood ring state), any
eggs that are adulterated as such term is defined in the federal
food, drug and cosmetic act.
(n) "Packer" means any person who grades, sizes, candles or
packs eggs for the purpose of resale.
(o) "Person" means any partnership, association, business
trust, corporation or any organized group of persons, whether
incorporated or not.
(p) "Possession" means the fact of possession by any person
engaged in the sale of a commodity is prima facie evidence that
the commodity is for sale.
(q) "Processor" means a person who operates a plant for the
purpose of breaking eggs for freezing, drying or commercial food
manufacturing.
(r) "Producer" means any person owning laying hens who
markets eggs.
(s) "Repacker" means any person who packs previously graded
and packed shell eggs for resale.
(t) "Retailer" means any person who sells eggs directly to
the consumer.
(u) "Sell" means to offer for sale, expose for sale, have in
possession for sale, exchange, barter or trade.
§19-10A-3 Permits and registration.
(a) An "Egg Distributor Certificate of Authorization" shall
be issued to every person distributing eggs in West Virginia.
Application for this permit may be made by each egg distributor to
the commissioner of agriculture on forms provided by the
commissioner at least thirty days prior to the expiration of their
current permit.
(b) For the purposes of financing the administration and
enforcement of this article, the state of West Virginia, through
the West Virginia department of agriculture shall collect an
inspection and permit fee from the distributor first introducing
the eggs into West Virginia trade channels.
(c) The inspection fee and annual permit fee shall be set by
the commissioner by legislative rule for all shell eggs processed
or sold in the state of West Virginia.
(d) All fees, interest, penalties, or other moneys collected
by the commissioner under the provisions of this article shall be
paid into a special account and be expended upon the order of the
commissioner for the purpose of the enforcement and administration
of this article.
(e) All egg distributor permits shall be conspicuously posted
in the place of business to which it applies. The permit year
shall be twelve months or any fraction thereof beginning the first
day of July and ending the thirtieth day of June of each year.
(f) No permit is transferable. Each physical location where
eggs are stored for distribution must have a separate egg
distributor permit.
(g) Producers exempted by the commissioner of agriculture by
legislative rule shall register with the West Virginia department
of agriculture but be exempt from paying the permit or inspection
fee pursuant to the provisions of section four of this article.
(h) The provisions of this article are applicable to all
retailers, wholesalers, packers and distributors of eggs.
(i) The commissioner of agriculture has the power to revoke
or suspend the certificate for failure to comply with the
provisions of this article and refuse to issue a certificate to
willful violators.
§19-10A-4. Exemptions.
Any person marketing eggs of his or her own production is
exempt from the provisions of section eight
of this article except
that carton labeling shall be according to legislative rule,
cartons must be clean and free of debris and eggs must be held
under refrigeration according to legislative rule. The
commissioner may exempt small producers from portions of this
article by legislative rule.
§19-10A-5. Container requirements.
No distributor may market eggs unless there is clearly
designated on the container the consumer grade and size or weight
class established in accordance with the provisions of this article
and the eggs shall conform to the designated grade and size or
weight class, except when sold on contract to an agency of the
United States government.
§19-10A-6. Standards, grades and weight classes.
The specifications for consumer grades and weight classes and
standards for quality of individual eggs shall be those promulgated by the United States department of agriculture as set forth in the
regulations governing the grading of shell eggs and United States
standards, grades and weight classes for shell eggs as amended from
time to time. These standards are adopted by reference
(Agricultural Marketing Service, U. S. Department of Agriculture as
AMS 56.200 et seq.) in its entirety.
§19-10A-7. Prohibited acts.
(a) If an authorized representative of the West Virginia
department of agriculture determines, after an inspection, that any
lot of eggs is in violation of this article, the representative may
issue an embargo. An embargo shall specify the reason for its
issuance and prohibit the sale, use of or transportation of eggs in
any manner until the embargo is released by the commissioner of
agriculture.
Violations of this article may be assessed to the packer,
repacker, distributor or retailer and will be determined and
assessed by the commissioner of agriculture.
(b) No person, firm or corporation may sell, traffic in, or
deliver to the retail or consuming trade, any eggs that are:
(1) Loss, inedible, denatured or leaker eggs;
(2) Not refrigerated; or
(3) Mislabeled or deceptively advertised.
(c) No person may sell eggs for resale to consumers below
"U.S. Consumer Grade B."
(d) No person may prepare, pack, place, deliver for
shipment, deliver for sale, load, ship, transport, offer for sale
in bulk containers or advertise by sign, placard or otherwise any
eggs for human consumption which are mislabeled or deceptive.
(e) No person or retailer may repack eggs in cartons which
were previously used and labeled by a packer; except, as outlined
in legislative rule.
(f) No person may distribute eggs without a valid egg
distributor's permit.
(g) No person may store or transport eggs unless held under
refrigeration as outlined in legislative rule.
(h) All shell eggs offered for sale, or exposed for sale shall
be in containers that are clean, unbroken and free from foreign
order.
(i) Other acts as adopted by legislative rule.
§19-10A-8. Labeling.
(a) Any container or subcontainer in which eggs are marketed
to consumers shall bear on the exterior of the container the
following:
(1) The identity of the packer by registry of USDA plant
number or by state permit number or name and address of packer,
distributor, retailer or repacker;
(2) The correct grade and size or weight classification;
(3) The term "EGGS";
(4) The quantity of eggs per retail unit (i.e. one dozen, 18
count, etc.) or dozens per case when packing loose eggs for
institutional use or an accurate statement of the quantity of the
contents in terms of numerical count;
(5) Loose eggs shall be labeled according to legislative rule;
(6) The words "keep refrigerated" shall be marked in a plain
and conspicuous manner on each container or consumer receptacle of
shell eggs;
(7) Use by or expiration date; and
(8) Additional labeling according to legislative rule.
§19-10A-9. Invoice requirements.
(a) Every person, firm or corporation selling eggs to a
retailer or manufacturer shall furnish an invoice showing the size
and quality of the eggs according to the standards prescribed by
this article together with the name and address of the person by
whom the eggs were sold and date of the sale. This invoice shall
be retained for one year.
(b) The commissioner of agriculture is authorized to examine
the invoices and such other records needed to determine the cause
and place of any violation of this article.
§19-10A-10. Advertising.
(a) All eggs offered for sale at retail shall be plainly
marked as to grade and size with letters not less than three- eighths inch in height.
(b) All eggs advertised or displayed for sale for human food
at a given price shall be advertised or displayed in the manner
adopted by legislative rule.
(c) Restaurants, hotels, delicatessens and other eating places
using eggs below "A" quality shall advertise this fact to the
public according to legislative rule.
§19-10A-11. Powers and duties of the commissioner.
(a) The commissioner shall by rule establish standards for the
grading, classification and marketing of shell eggs bought and sold
by any person, firm or corporation in the state of West Virginia.
These standards shall conform to, on date of the sale to the
consumer, the minimum standards promulgated by the USDA as defined
in the "United States Standards, Grades and Weight Classes for
Shell Eggs," authorized under Section 205, 60 Stat. 1091, Public
Law 135, 82nd Congress; 7 U.S.C. 1624, effective July 11, 1952, and
amendments thereto.
(b) All duties and functions required to be performed by the
West Virginia department of agriculture under the provisions of
this article shall be performed by the commissioner of agriculture.
(c) The commissioner of agriculture shall enforce the
provisions of this article and is hereby authorized to make and
promulgate such rules as may be necessary for the enforcement of
this article.
(d) The commissioner has the power to issue an embargo or
general embargo for any product which is or is believed to be
adulterated, mislabeled or is not in compliance with this article
and to cause the distributing of such product to cease. Nothing in
this article may be construed as to requiring the commissioner to
issue embargoes for minor violations of this article when the
commissioner believes that a written notice of violation will serve
the public interest.
(e) Audits:
(1) Annual audits of all permit holders, including out-of- state permit holders may be performed by the West Virginia
department of agriculture to insure proper reporting of egg
inspection fees. Travel expenses incurred in conducting out-of- state audits are to be reimbursed to the West Virginia department
of agriculture by out-of-state permit holders.
(2) The state of West Virginia's out-of-state daily allowance
for meals and lodging will be the maximum amount reimbursable, plus
travel expenses to and from locations of permit holders.
§19-10A-12. Egg handling facilities, temperature and humidity,
sanitation and cleaning.
(a) Any packer or distributor engaged in the assembling,
marketing or the processing of eggs for marketing shall, in
addition to maintaining egg handling facilities in a manner
commensurate with laws governing food establishments.
(b) All eggs shall be stored or transported under
refrigeration as allowed by legislative rule.
(c) Eggs handling facilities, humidity, sanitation and
cleaning of eggs shall be as adopted in legislative rule.
§19-10A-13. Access To premises.
(a) The commissioner of agriculture is authorized to enter any
store, vehicle, market, or any other business or place where eggs
are bought, stored, processed, packed or offered for sale and to
make inspections as needed to determine compliance with this
article and corresponding rules. During an inspection the
commissioner of agriculture is further authorized to candle and
weigh eggs to determine if the grades and sizes of such eggs
conform to grades and sizes labeled on the exterior of the
container.
(b) All eggs shall be considered the property of the person in
whose possession they are found except those in the custody of
common carriers or public warehouses where the owner is identified
by record.
§10-10A-14. Penalties.
(a) Criminal penalties. -- Any person violating any provision
of this article or rule adopted hereunder is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than five hundred dollars for the
first offense, and for the second or subsequent offense, shall be fined not less than five hundred dollars nor more than one thousand
dollars, or imprisoned not more than six months, or both fined and
imprisoned. Magistrates have concurrent jurisdiction with circuit
courts to enforce the provisions of this article.
(b) Civil penalties. -- Any person violating a provision of
this article or rules adopted hereunder may be assessed a civil
penalty by the commissioner of agriculture. In determining the
amount of any civil penalty, the commissioner shall give due
consideration to the history of previous violations of any person,
the seriousness of the violation, including any irreparable harm to
the environment, any hazards to the health and safety of the
public and any economic damages to the public and the demonstrated
good faith of any person charged to achieve compliance with this
article before and after written notification of the violation:
(1) The commissioner may assess a civil penalty of up to one
thousand dollars for a violation;
(2) The civil penalty is payable to the state of West Virginia
and is collectible in any manner now or hereafter provided for
collection of debt. If any person liable to pay a civil penalty
neglects or refuses to pay the same, the amount of the civil
penalty, together with interest at ten percent, is a lien in favor
of the state of West Virginia upon the property, both real and
personal, of such a person after the same has been entered and
docketed to record in the county where such property is situated. The clerk of the county, upon receipt of the certified copy of
such, shall enter same to record without requiring the payment of
costs as a condition precedent to recording;
(c) Notwithstanding any other provision of law to the
contrary, the commissioner may promulgate and adopt rules which
permit consent agreement or negotiated settlements for the civil
penalties assessed as a result of violation of the provision of
this article;
(d) Upon application by the commissioner for an injunction,
the circuit court of the county in which the violation is
occurring, has occurred or is about to occur, as the case may be,
may grant a temporary or permanent injunction restraining any
person from violating or continuing to violate any provision of
this article or any rule promulgated under this article,
notwithstanding the existence of other remedies of law. Any such
injunction shall be issued without bond;
(e) No state court may allow for the recovery of damages for
any administrative action taken, if the court finds that there was
a probable cause for such action;
(f) It is the duty of the prosecuting attorney of the county
in which the violation occurred to represent the department of
agriculture, to institute proceedings and to prosecute the person
charged with such violation.
(g) Hearings and appeals. --
(1) Any person aggrieved by any action taken under this
article shall be afforded the opportunity for a hearing before the
commissioner under the rules promulgated by the commissioner.
(2) Hearings shall be conducted in accordance with procedures
set forth by rule.
(3) All the testimony and evidence at a hearing shall be
recorded by mechanical means, which may include the use of tape
recordings. The mechanical record shall be maintained for ninety
days from the date of the hearing and a transcript shall be made
available to the aggrieved party.
(4) Any person who feels aggrieved of the suspension,
revocation or denial order may appeal within sixty days to the
circuit court of the county in which the person has located its
principal place of business.
§19-10A-15. Persons punishable as principals.
(a) Whoever commits any act prohibited by any section of this
article or aids, abets, induces or procures its commissioner, is
punishable as a principal.
(b) Whoever causes an act to be done which if directly
performed by him or another would be a violation of the provisions
of this article, is punishable as a principal.
§19-10A-16. Cooperation with other entities.
The commissioner may cooperate with and enter into agreements
with governmental agencies of this state, other states, agencies of the federal government, agencies of foreign governments and private
associations in order to carry out the purpose and provisions of
this article.
§19-10A-17. Confidentiality of trade secrets.
The commissioner may not make public information which
contains or relates to trade secrets, commercial or financial
information obtained from a person or privileged or confidential
information: Provided, That when the information is needed to
carry out the provisions of this article, this information may be
revealed, subjected to a protective order, to any federal, state or
local agency consultant or may be revealed, subject to a protective
order, at a closed hearing or in findings of fact issued by the
commissioner.
NOTE: This bill creates the "West Virginia Egg Marketing Law
of 1998," rewriting the existing marketing of eggs statute. Its
stated purpose is to protect, promote the public health and general
welfare and to prevent fraud and deception in the production,
processing, sale and distribution of eggs.
Article 10A has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
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