HB 1333 — Honey and honey products; transfer authority to inspect from State Department of Health to the MS Department of Agriculture and Commerce.

HB1333 (As SentPassed tothe Governor)House) - 2018 Regular Session MISSISSIPPI LEGISLATURE Regular Session To:

Representatives Morgan, Dixon House Bill 1333 (As SentPassed tothe Governor)House) AN ACT TO CREATEAMEND THESECTIONS 41-3-18, 75-29-19, 75-29-21 AND 75-29-603, MISSISSIPPI CODE OF 1972, TO TRANSFER THE AUTHORITY OF INSPECTING HONEY PRODUCERSAND ADVISORYHONEY COUNCIL;PRODUCTS FROM THE STATE DEPARTMENT OF HEALTH TO THE MISSISSIPPI DEPARTMENT OF AGRICULTURE AND COMMERCE;

TO PROVIDEAUTHORIZE FORTHE ACOMMISSIONER REVIEWOF BYAGRICULTURE THEAND ADVISORYCOMMERCE COUNCILTO OFESTABLISH THEINSPECTION LAWSFEES REGULATINGFOR THE PRODUCTIONINSPECTION OF HONEY INAND MISSISSIPPI;HONEY PRODUCTS;

TO PROVIDEBRING FORFORWARD THESECTIONS MEMBERSHIP75-29-601, OF75-29-604, THE75-29-605 AND 75-29-607, MISSISSIPPI HONEYCODE PRODUCERSOF ADVISORY1972, COUNCIL;FOR THE PURPOSE OF POSSIBLE AMENDMENT;

TO REQUIRE THAT THE COUNCIL REPORT ITS FINDINGS AND RECOMMENDED AMENDMENTS, IF ANY, TO THE LEGISLATURE NO LATER THAN NOVEMBER 30, 2018;

     SECTION 1.  (1) Section There41-3-18, is created the Mississippi HoneyCode Producers Advisory Council.  The purpose of the1972, advisory council is toamended reviewas thefollows: laws and regulations governing the production of honey in Mississippi to determine if those laws and regulations address the concerns of the industry or if those laws and regulations need revision to address the concerns of the industry, and to prepare and develop its findings and recommendations in a written report to the Legislature.

     (2) 41-3-18.  (1)  The Mississippiboard Honey Producers Advisory Council shall beassess composedfees ofin ten (10) members of the Executivefollowing Boardamounts of the Mississippi Beekeepers Association.  There shall be two (2) staff members from the Mississippi Department of Agriculture and Commerce,for two (2) staff members from the Mississippifollowing Statepurposes: Department of Health, and one (1) staff member from Mississippi State University Extension Service at each meeting of the advisory council to provide technical assistance.  The council may seek input from all of the aforementioned state agencies.

              (3) (a)  TheFood presidentestablishment ofannual thepermit associationfee, shallbased beon the chairassessment offactors the Mississippi Honey Producers Advisory Council.  The chair shall be responsible for calling meetings of the councilestablishment and conducting the meetings.  The council shall elect a vice chair to serve as secretaryfollows: who shall be responsible for keeping all records and minutes of the advisory council.  All members shall be notified in writing of all meetings;

suchAssessment noticesCategory shall1................................... be mailed or emailed, as determined by the council, at least fifteen (15) days before the date on which a meeting is to be held.  Members of the advisory council shall not be compensated or reimbursed for travel expenses.  Notice of meetings of the advisory council shall be provided to the Chairman of the Senate Agriculture Committee, the Chairman of the House Agriculture Committee, and the state agencies and institutions referenced in subsection (2) of this section at least fifteen (15) days prior to said meeting.

    $ (4) 30.00 MeetingsAssessment shallCategory be2................................... conducted at either the Mississippi Department of Agriculture and Commerce or the Mississippi State Department of Health, depending on meeting space availability.  The agencies are directed to work with the chair to provide meeting space.  The advisory council shall meet and organize thirty (30) days after the passage of this act.

    100.00 (5) Assessment ACategory majority3................................... of the members of the advisory council shall constitute a quorum.  In the selection of the vice chair, and the adoption of rules, minutes, findings and recommendations, an affirmative vote of a majority of the advisory council shall be required.

    150.00 (6) Assessment NoCategory later4................................... than November 30, 2018, the council shall report its findings and recommendation in writing to the Chairman of the Senate Agriculture Committee and the Chairman of the House Agriculture Committee.  After submitting the recommendation and findings required in subsection (1) of this section, the Mississippi Honey Producers Advisory Council shall be dissolved.

    200.00 SECTION(b)  2. Private Thiswater actsupply shallapproval takefee........ effect and be in force from and after its passage.

$ 10.00      The board may develop such reasonable standards, rules and regulations to clearly define each assessment category.  Assessment categories shall be based upon the factors to the public health implications of the category and type of food preparation being utilized by the food establishment, utilizing the model Food Code of 1995, or as may be amended by the federal Food and Drug Administration.

     Any increase in the fees charged by the board under this subsection shall be in accordance with the provisions of Section 41-3-65.

     (2)  The fee authorized under subsection (1)(a) of this section shall not be assessed for:

          (a)  Food establishments operated by public schools, public junior and community colleges, or state agencies or institutions, including, without limitation, the state institutions of higher learning and the State Penitentiary;

and           (b)  Persons who make infrequent casual sales of honey and who pack or sell less than five hundred (500) gallons of honey per year, and those persons shall not be inspected by the * * *State Department of Health Mississippi Department of Agriculture and Commerce unless requested by the producer.  However, if a producer requests an inspection or if a person makes infrequent casual sales of honey and who pack or sell more than five hundred (500) gallons of honey per year, those persons shall pay the inspection fee established by the Mississippi Department of Agriculture and Commerce.

     (3)  The fee authorized under subsection (1)(b) of this section shall not be assessed for private water supplies used by foster homes licensed by the Department of Human Services.

     SECTION 2.  Section 75-29-19, Mississippi Code of 1972, is amended as follows:

     75-29-19.  The State Board of Health is hereby charged with the enforcement of this chapter.  However, as it relates to the regulation and sale of honey, the Mississippi Department of Agriculture and Commerce shall be charged with the enforcement of such practices.  The State Board of Health shall have the authority to establish such rules and regulations not inconsistent with this chapter as will best carry its provisions into effect, unless regulation of food as defined in this chapter is otherwise authorized by law.

     SECTION 3.  Section 75-29-21, Mississippi Code of 1972, is amended as follows:

     75-29-21.  In the discretion of the State Board of Health, or in the case of honey, the Mississippi Department of Agriculture and Commerce, samples or specimens for analysis may be taken by duly qualified and sworn inspectors.  Whenever practicable, samples shall be taken by representatives of the board.  The Office of the State Chemist shall have primary responsibility for providing chemical, physical and microbiological analytical services in support of regulatory programs provided for herein.

     SECTION 4.  Section 75-29-601, Mississippi Code of 1972, is brought forward as follows:

     75-29-601.  (1)  Every container of honey or honey products sold, offered or exposed for sale, by an individual, firm, organization or corporation in the State of Mississippi shall have on the outside of each container a paper label, permanent type stamped imprint or embossed material on the container itself, plainly printed in the English language truly certifying the net contents of the container, the name, brand, name and address of the person or processor offering such honey or honey products for sale, and a true statement of the contents contained therein.       (2)  It shall be unlawful for any individual, firm, organization or corporation to label and/or sell, offer for sale or expose for sale at the retail level of trade any product as "pure honey" that does not meet the minimum requirements established by the Mississippi Department of Agriculture and Commerce.  Artificial honey products not of one hundred percent (100%) pure honey shall be labeled in the English language as "artificial honey," and the word "artificial" shall be as prominently shown as the word "honey," and a list of the ingredients in the products and a percent by weight of each ingredient shall be shown on the label.       (3)  It shall be unlawful for any manufacturer or distributor of honey or honey products to use a fictitious name or address on the container label required herein.

     SECTION 5.  Section 75-29-603, Mississippi Code of 1972, is amended as follows:

     75-29-603.  (1)  The Mississippi Department of Agriculture and Commerce is hereby charged with the responsibility of enforcing this article and the Commissioner of Agriculture and Commerce or his representative shall be furnished samples of honey or honey products from the individual, firm, organization or corporation, upon request, and shall have such products analyzed by the State Chemist.

     (2)  The Commissioner of Agriculture and Commerce is authorized, in his discretion, to issue an order to stop the sale or distribution of any honey or honey products found to be in violation of this article.  Upon written notice by the commissioner to the manufacturer or distributor of the honey or honey products sold in violation of this article, such honey or honey products shall be picked up by the manufacturer or distributor of such products and the buyer of the honey or honey products sold in violation of this article shall be refunded the purchase price by the manufacturer or distributor.

     (3)  The Commissioner of Agriculture and Commerce of the State of Mississippi is hereby authorized and empowered, in his discretion, to make and promulgate rules and regulations as may be necessary to carry out the provisions of this article.

     (4)  The Commissioner of Agriculture and Commerce is authorized to establish fees for the inspection of honey or honey products sold within the state in a manner consistent with the categorical inspection fees assessed by the State Board of Health under Section 41-3-18.

     SECTION 6.  Section 75-29-604, Mississippi Code of 1972, is brought forward as follows:

     75-29-604.  (1)  When a written complaint is made against a person for violation of this article, or any of the rules or regulations, the commissioner, or his designee, shall conduct a full evidentiary hearing.  The complaint shall be in writing and shall be filed in the office of the department.  The commissioner shall serve the accused with a copy of the complaint and a summons by any of the methods set forth in Rule 4 of the Mississippi Rules of Civil Procedure or by certified mail.  Within thirty (30) days after receipt of the summons and a copy of the complaint, the accused shall file a written answer with the department.  Upon receipt of the written answer of the accused, the matter shall be set for hearing before the commissioner within a reasonable time.  If the accused fails to file an answer within the thirty (30) days, the commissioner may enter an order by default against the accused.  The commissioner may issue subpoenas to require the attendance of witnesses and the production of documents.  Compliance with the subpoenas may be enforced by any court of general jurisdiction in this state.  The testimony of witnesses shall be upon oath or affirmation, and they shall be subject to cross-examination.  The proceedings shall be recorded.  If the commissioner determines that the complaint lacks merit, he may dismiss same.  If he finds that there is substantial evidence showing that a violation has occurred, he may impose any or all of the following penalties upon the accused:  (a) levy a civil penalty in the amount of no more than Five Thousand Dollars ($5,000.00) for each violation;

(b) issue a stop sale order;

(c) require the accused to relabel the honey or honey products that he is offering or exposing for sale which is not labeled in accordance with this article;

or (d) seize any lot of honey or honey products that is not in compliance with this article and destroy, sell or otherwise dispose of the honey and honey products and apply the proceeds of the sale to the costs and civil penalties levied with the balance to be paid to the accused.  The decision of the commissioner, or his designee, shall be in writing, and it shall be delivered to the accused by certified mail.

     (2)  Either the accused or the department may appeal the decision of the commissioner to the circuit court of the county of residence of the accused or, if the accused is a nonresident of the State of Mississippi, to the Circuit Court of the First Judicial District of Hinds County, Mississippi.  The appellant shall have the record transcribed and file it with the circuit court.  The appeal shall otherwise be governed by all applicable laws and rules affecting appeals to circuit court.  If no appeal is perfected within the required time, the decision of the commissioner shall then become final.

     (3)  The decision of the circuit court may then be appealed by either party to the Mississippi Supreme Court in accordance with the existing law and rules affecting such appeals.

     (4)  When any violation of this article, or the rules and regulations occurs, or is about to occur, that presents a clear and present danger to the public health, safety or welfare requiring immediate action, any of the department's field inspectors, and any other persons authorized by the commissioner, may issue an order to be effective immediately before notice and a hearing that imposes any or all of the following penalties against the accused:  (a) issue a stop sale order;

(b) require the accused to relabel any honey or honey products that he is offering or exposing for sale and which is not labeled in accordance with this article;

or (c) seize any lot of honey or honey products that is not in compliance with this article and destroy, sell or otherwise dispose of the honey or honey products and apply the proceeds of the sale to the cost and any civil penalties levied with the balance to be paid to the accused.  The order shall be served upon the accused in the same manner that the summons and complaint may be served upon him.  The accused shall then have thirty (30) days after service of the order upon him within which to request an informal administrative review before the Director of the Bureau of Regulatory Services in the department, or his designee, who shall act as reviewing officer.  If the accused makes a timely request, the reviewing officer shall conduct an informal administrative review within ten (10) days after the request is made.  If the accused does not request an informal administrative review within the thirty (30) days, then he will be deemed to have waived his right to the review.  At the informal administrative review, subpoena power shall not be available, witnesses shall not be sworn nor be subject to cross-examination and there shall be no court reporter or record made of the proceedings.  Each party may present its case in the form of documents, oral statements or any other method.  The rules of evidence shall not apply.  The reviewing officer's decision shall be in writing, and it shall be delivered to the parties by certified mail.  If either party is aggrieved by the order of the reviewing officer, he may appeal to the commissioner for a full evidentiary hearing in accordance with the procedures in subsection (1) of this section, except that there shall be no requirement for a written complaint or answer to be filed by the parties.  The appeal shall be perfected by filing a notice of appeal with the commissioner within thirty (30) days after the order of the reviewing officer is served on the appealing party.  The hearing before the commissioner, or his designee, shall be held within a reasonable time after the appeal has been perfected.  Failure to perfect an appeal within the allotted time shall be deemed a waiver of such right.