Code of Virginia

Code of Virginia
Title 3.2. Agriculture, Animal Care, and Food
6/19/2019

Article 4. Seizures, Prosecutions, Penalties, and Enforcement.

§ 3.2-5129. Definition of term "food.".

The term "food" as used in this article means all articles used for food, drink, confectionery or condiment, whether simple, mixed or compound, and all substances or ingredients used in the preparation thereof, intended for human consumption and introduction into commerce.

Code 1950, § 3-285; 1966, c. 702, § 3.1-365; 2008, c. 860.

§ 3.2-5130. Inspections required to operate food establishment.

A. It is unlawful to operate a food manufacturing plant, food storage warehouse, or retail food store until it has been inspected by the Commissioner. This section shall not apply to:

1. Food manufacturing plants operating under a grant of inspection from the Office of Meat and Poultry Services or a permit from the Office of Dairy and Foods in the Department; and Grade A fluid milk manufacturing plants and shellfish and crustacea processing plants operating under a permit from the Virginia Department of Health;

2. Nonprofit organizations holding one-day food sales;

3. Private homes where the resident processes and prepares candies, jams, and jellies not considered to be low-acid or acidified low-acid food products, dried fruits, dry herbs, dry seasonings, dry mixtures, coated and uncoated nuts, vinegars and flavored vinegars, popcorn, popcorn balls, cotton candy, dried pasta, dry baking mixes, roasted coffee, dried tea, cereals, trail mixes, granola, and baked goods that do not require time or temperature control after preparation if such products are: (i) sold to an individual for his own consumption and not for resale; (ii) sold at the private home or at farmers markets; (iii) not offered for sale to be used in or offered for consumption in retail food establishments; (iv) not offered for sale over the Internet or in interstate commerce; and (v) affixed with a label displaying the name, physical address, and telephone number of the person preparing the food product, the date the food product was processed, and the statement "NOT FOR RESALE -- PROCESSED AND PREPARED WITHOUT STATE INSPECTION" shall be placed on the principal display panel. Nothing in this subdivision shall create or diminish the authority of the Commissioner under § 3.2-5102;

4. Private homes where the resident processes and prepares pickles and other acidified vegetables that have an equilibrium pH value of 4.6 or lower if such products are (i) sold to an individual for his own consumption and not for resale; (ii) sold at the private home or at farmers markets; (iii) not offered for sale to be used in or offered for consumption in retail food establishments; (iv) not offered for sale over the Internet or in interstate commerce; (v) affixed with a label displaying the name, physical address, and telephone number of the person preparing the food product, the date the food product was processed, and the statement "NOT FOR RESALE -- PROCESSED AND PREPARED WITHOUT STATE INSPECTION" shall be placed on the principal display panel; and (vi) not exceeding $3,000 in gross sales in a calendar year. Nothing in this subdivision shall create or diminish the authority of the Commissioner under § 3.2-5102;

5. Private homes where the resident processes and prepares honey produced by his own hives, if: (i) the resident sells less than 250 gallons of honey annually; (ii) the resident does not process and sell other food products in addition to honey, except as allowed by subdivisions 3 and 4; (iii) the product complies with the other provisions of this chapter; and (iv) the product is labeled "PROCESSED AND PREPARED WITHOUT STATE INSPECTION. WARNING: Do Not Feed Honey to Infants Under One Year Old." Nothing in this subdivision shall increase or diminish the authority of the Commissioner under § 3.2-5102; and

6. Retail establishments that (i) do not prepare or serve food; (ii) sell only food or beverages that are sealed in packaging by the manufacturer and have been officially inspected in the manufacturing process; (iii) do not sell infant formulas; (iv) do not sell salvaged foods; and (v) certify to the Department that they meet the provisions of this subdivision.

B. Nonprofit organizations, private homes, and retail establishments that qualify for an exception under subsection A shall be exempt from inspection and the inspection fees. Nothing in this section shall prevent the Department from inspecting any nonprofit organization, private home, or retail establishment if a consumer complaint is received.

C. Any person who violates any provision of this section is guilty of a Class 1 misdemeanor.

1993, c. 936, § 3.1-398.1; 2003, c. 420; 2004, c. 953; 2008, cc. 459, 860; 2011, c. 316; 2013, c. 285.

§ 3.2-5131. Right to enter and take samples.

The Commissioner is empowered, in the performance of his duties, to enter into any place where he has reason to believe food or drink is made, stored, sold, or offered for sale, and open any cask, tub, jar, bottle, or package containing or supposed to contain, any article of food or drink, and examine or cause to be examined the contents, and take samples for analysis. The person making such inspection shall take samples of the article or produce in the presence of at least one witness, and shall, in the presence of the witness, mark or seal the sample. The inspector shall tender at the time of taking to the manufacturer or vendor of the product, or to the person having the custody of the product, the value thereof, and the statement in writing for the taking of the sample.

Code 1950, § 3-326; 1966, c. 702, § 3.1-405; 2008, c. 860.

§ 3.2-5132. Notice and warning to place premises in sanitary condition.

Whenever it is determined by the Commissioner that filthy or unsanitary conditions exist or are permitted to exist in the operation of any place where any food or drink products are manufactured, stored, deposited, or sold for any purpose, the proprietor or owner of the place, or any person owning or operating any place where any food or drink products are manufactured, stored, deposited, or sold, shall first be notified and warned by the Commissioner to establish in a sanitary condition within a reasonable length of time such place. After the first notice and warning of a violation has been issued no notice and warning of the same violation occurring within 90 days after the first notice and warning has been given as provided under § 3.2-5133 shall be required; provided that notice and warning shall be required as to any violation occurring more than 90 days after notice and warning has been given as to a violation.

Code 1950, § 3-327; 1956, c. 528; 1966, c. 702, § 3.1-406; 2008, c. 860.

§ 3.2-5133. Failure to obey such notice and warning a misdemeanor.

Any person owning or operating any place where any food or drink products are manufactured, stored, deposited, or sold, failing to obey such notice and warning, or permitting filthy or unsanitary conditions to exist after a notice of previous violation has been issued, provided the violation occurred within 90 days after notice and warning has been issued, is guilty of a Class 1 misdemeanor.

Code 1950, § 3-328; 1956, c. 528; 1966, c. 702, § 3.1-407; 2008, c. 860.

§ 3.2-5134. Condemnation of unsafe food by Commissioner.

If the Commissioner finds in any room, building, vehicle of transportation, or other structure, any meat, seafood, poultry, vegetable, fruit, or other perishable articles of food, which are unsound or contain any filthy, decomposed, or putrid substance, or that may be poisonous or deleterious to health or otherwise unsafe, then the articles of food shall be declared to be a nuisance, and the Commissioner shall condemn or destroy the unsafe articles of food or render the unsafe articles of food to be unsalable as human food.

Code 1950, § 3-311; 1966, c. 702, § 3.1-391; 2008, c. 860.

§ 3.2-5135. Authority to seize food and dairy products; analysis; disposition of remainder.

A. The Commissioner is authorized at all times to seize and take possession of any and all food and dairy products, substitutes, or imitations kept for sale, exposed for sale, or held in possession or under the control of any person that in the opinion of the Commissioner are believed to be in violation of any provision of law.

B. When the Commissioner seizes any goods pursuant to subsection A, he may take a sample from the goods for the purpose of analysis and shall leave the remainder in the possession of the person from whom they were seized, subject to the determined disposition.

C. Any person making a seizure under this section shall forward any sample taken pursuant to subsection B that in the determination of the Commissioner requires laboratory analysis to the Division of Consolidated Laboratory Services of the Department of General Services (the Division). The Division shall turn over the sample to a qualified analyst who shall analyze the sample and certify the results of the analysis. Where the qualified analyst is an employee of the Division, the analyst's certificate shall be prima facie evidence of the facts certified to in any appropriate court where the sample may be offered in evidence.

Code 1950, §§ 3-329 to 3-331; 1966, c. 702, §§ 3.1-408 to 3.1-410; 1978, c. 702; 2008, c. 860; 2015, c. 91.

§ 3.2-5136. Purchase of samples for analysis.

Any person who exposes or offers for sale or delivers to a purchaser any food shall furnish within business hours and upon tender and full payment of the selling price, a sample of such food, to the Commissioner, and who shall apply to such manufacturer or vendor or person delivering such food to a purchaser for a sample in sufficient quantity for the analysis of the article in his possession. Samples may be purchased on the open market and shall be representative samples; the collector shall also note the name of the vendor and agent through whom the sale was actually made, together with date of purchase, and all samples not taken in unbroken and sealed original packages shall be sealed by the collector in the presence of the vendor with a seal provided for the purpose.

When possible, samples shall be unbroken and sealed original packages, or taken out of unbroken and sealed original packages. Three like samples shall be obtained where the article is in the original package, or if not in the original package the sample obtained shall be divided into three equal parts and each part shall be labeled with the marks, brands, or tags upon the package, carton, container, wrapper, or accompanying printed or written matter. One sample shall be delivered to the party from whom purchased, or to the party guaranteeing such merchandise; two samples shall be sent to the Commissioner, one of which is to be analyzed, as provided in this chapter, and the other shall be held under seal by the Commissioner.

Code 1950, § 3-338; 1966, c. 702, § 3.1-417; 2008, c. 860.

§ 3.2-5137. Proceeding for forfeiture.

If upon laboratory analysis it appears that the food or dairy products are adulterated, substituted, misbranded, or imitated within the meaning of this chapter, the Commissioner may make complaint before a magistrate, or other officer authorized to issue summons, having jurisdiction where the goods were seized. The magistrate or other officer shall issue his summons to the person from whom the goods were seized, directing him to appear before an appropriate court in such jurisdiction not less than six nor more than 12 days from the date of issuing the summons and show cause why the goods should not be condemned and disposed of. If the person from whom the goods were seized cannot be found, then the summons shall be served upon the person then in possession of the goods. The summons shall be served at least six days before the time of appearance mentioned therein. If the person from whom the goods were seized cannot be found, and no one can be found in possession of the goods, and the defendant shall not appear on the return day, then an appropriate court shall proceed in the cause in the same manner as where a writ of attachment is returned not personally served upon any of the defendants and none of the defendants shall appear upon the return day.

Code 1950, § 3-332; 1966, c. 702, § 3.1-411; 2005, c. 839; 2008, c. 860.

§ 3.2-5138. Judgment as to goods seized; procedure before an appropriate court; appeal.

Unless otherwise shown, or if the goods are found upon trial to be in violation of any of the provisions of this chapter or other laws, it shall be the duty of the general district court to render judgment that the seized property be forfeited to the Commonwealth, and that the goods be destroyed or sold by the Commissioner for any purpose other than to be used for food. The mode of procedure before the general district court shall be the same, as near as may be in civil proceedings. Either party may appeal to the circuit court as appeals are taken from the general district court, but it shall not be necessary for the Commonwealth to give any appeal bond.

Code 1950, § 3-333; 1966, c. 702, § 3.1-412; 2005, c. 839; 2008, c. 860.

§ 3.2-5139. Disposition of proceeds from sale of such goods.

The proceeds arising from any sale of seized property or goods shall be disposed of in accordance with § 19.2-386.14. If the owner or party claiming the property or goods can produce and prove a written guaranty of purity, signed by the wholesaler, jobber, manufacturers, or other party residing within the Commonwealth from whom the articles were purchased, then the proceeds of the sale, over and above the costs of seizure, forfeiture and sale, shall be paid to the owner or claimant to reimburse him, to the extent of such surplus, for his actual loss resulting from the seizure and forfeiture as shown by the invoice.

Code 1950, § 3-334; 1966, c. 702, § 3.1-413; 2008, c. 860; 2012, cc. 283, 756.

§ 3.2-5140. Attorney for the Commonwealth to render legal assistance.

It shall be the duty of the attorney for the Commonwealth when called upon by the Commissioner to render any legal assistance in his power in proceeding under the provisions of this chapter.

Code 1950, § 3-335; 1966, c. 702, § 3.1-414; 2008, c. 860.

§ 3.2-5141. General duty of attorneys for the Commonwealth; compensation.

Whenever a violation of any laws governing the manufacture and preparation for sale, storage, and sale of articles used as food or condiment by human beings or animals, commonly known as the "pure food" and "feeding stuffs laws," is reported by the Commissioner to any attorney for the Commonwealth it shall be the duty of the attorney for the Commonwealth to commence proceedings and prosecute without delay for the fines and penalties in cases prescribed and upon the termination of such proceedings to report in detail to the Commissioner, the results.

For every conviction in any case instituted by any attorney for the Commonwealth upon the complaint of the Commissioner, the attorney for the Commonwealth prosecuting any such case, after he has reported the results to the Commissioner, shall be entitled to a fee of $10 that shall be taxed as a part of the costs in the case, as costs are taxed in other criminal cases, and execution issued therefor against the defendant; and the fee shall be paid notwithstanding any law to the contrary limiting or prescribing the compensation and fees of attorneys for the Commonwealth.

In any case of a sale or delivery of goods in violation of the provisions of the pure food or feeding stuffs laws, the person making such sale or delivery, may be prosecuted either in the county or city where the sale or delivery originated, or in the county or city where the illegal goods were found by the Commissioner.

Code 1950, §§ 3-321, 3-336; 1966, c. 702, §§ 3.1-401, 3.1-415; 1972, c. 741; 2008, c. 860.

§ 3.2-5142. Punishment for hindering Commissioner.

Any person who shall willfully hinder or obstruct the Commissioner in the exercise of the powers conferred upon him by this chapter is guilty of a Class 2 misdemeanor.

Code 1950, § 3-337; 1966, c. 702, § 3.1-416; 2008, c. 860.

§ 3.2-5143. Enforcement against companies.

When construing and enforcing the provisions of this chapter and Chapters 52 (§ 3.2-5200 et seq.) and 54 (§ 3.2-5400 et seq.), the act, omission, or failure of any officer, agent, or other individual acting for or employed by any partnership, corporation, company, society, or association within the scope of his employment or office, shall in every case be also deemed the act, omission, or failure of such partnership, corporation, company, society, or association, as well as that of the individual.

Code 1950, § 3-340; 1966, c. 702, § 3.1-419; 2002, c. 185; 2008, c. 860.

§ 3.2-5144. Exemption from civil liability in certain cases.

A. Any farmer, processor, distributor, wholesaler, food service establishment, restaurant, or retailer of food, including a grocery, convenience, or other store selling food or food products, who donates food to any food bank or any second harvest certified food bank or food bank member charity that is exempt from taxation under 26 U.S.C. § 501(c) (3), which maintains a food storage facility certified by the Department and, where required by ordinance, by the State Department of Health, for use or distribution by the organization shall be exempt from civil liability arising from any injury or death resulting from the nature, age, condition, or packaging of the donated food. The exemption of this section shall not apply if the injury or death directly results from the gross negligence or intentional act of the donor. If the donor is a food service establishment or a restaurant, such donor shall comply with the regulations of the Board of Health with respect to the safe preparation, handling, protection, and preservation of food, including necessary refrigeration or heating methods, pursuant to the provisions of § 35.1-14.

B. Any farmer who gratuitously allows persons to enter upon his own land for purposes of removing any crops remaining in his fields following the harvesting thereof, shall be exempt from civil liability arising out of any injury or death resulting from the nature or condition of such land or the nature, age, or condition of any such crop. The exemption of this section shall not apply if the injury or death directly results from the gross negligence or intentional act of the farmer.

1980, c. 516, § 3.1-418.1; 1987, c. 322; 1990, cc. 211, 255, 303; 1998, c. 641; 2008, c. 860.

§ 3.2-5145. Punishment for failure to comply with requirements of certain chapters.

Any person who refuses to comply upon demand with the requirements of this chapter and Chapters 52 (§ 3.2-5200 et seq.) and 54 (§ 3.2-5400 et seq.) who shall impede, obstruct, hinder, or otherwise prevent or attempt to prevent any inspector or other person in the performance of his duty in connection with such chapters, is guilty of a Class 2 misdemeanor, unless otherwise specified, and such fines, less the legal costs, shall be paid into the state treasury.

Code 1950, § 3-339; 1966, c. 702, § 3.1-418; 2002, c. 185; 2008, c. 860.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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