Virginia Law

Article 3. Ice Cream and Similar Products.

The Board is authorized to establish definitions, standards of quality and identity, and to adopt and enforce regulations dealing with the issuance of permits, labeling, and sanitary standards for ice cream, ice milk, frozen custards, sherbets, water ices, related foods, other similar products, and those products manufactured or sold in semblance to or as substitutes.

1970, c. 48, § 3.1-562.1; 2008, c. 860.

The Commissioner shall administer and enforce the regulations adopted pursuant to this article. He is empowered, in the performance of his duties, to enter upon and to have free access to any establishment or area subject to the provisions of this article or the regulations adopted hereunder.

1970, c. 48, § 3.1-562.3; 2008, c. 860.

Any person engaged in the manufacture in the Commonwealth of any of the foods listed in § 3.2-5212 shall apply to the Commissioner on an application form prescribed by him for a permit to manufacture such foods or any of them.

A separate application shall be made for each establishment where such foods are manufactured or are to be manufactured. The Commissioner may by agreement delegate the enforcement of this article to the State Health Commissioner for restaurants as defined in § 35.1-1. Such agreement shall provide for the combining of the permit required by this article and the license required by § 35.1-18.

The Commissioner, upon receipt and approval of such application properly executed, shall issue a permit authorizing the applicant to engage in the manufacture of such foods as are described in the application. The Commissioner may, after a full hearing, refuse to issue a permit or renew a permit, or may suspend or revoke a permit in the case of any establishment that does not meet the requirements of this article or of any regulation adopted for its administration and enforcement. Permits shall be renewable on July 1 of each year.

1970, c. 48, § 3.1-562.6; 1978, c. 722; 1996, c. 722; 2008, c. 860.

Whenever any product subject to this article is found by the Commissioner upon any premises where it is held and there is reason to believe that the product is adulterated or misbranded in violation of the regulations adopted by the Board pursuant to this article, or that such product has been or is intended to be distributed in violation of regulations, the product may be detained for a period not to exceed 20 days, pending action under § 3.2-5216 of this article, and shall not be moved by any person from the place at which it is located when detained, until released by the Commissioner.

1970, c. 48, § 3.1-562.8; 2008, c. 860.

Any product referred to by § 3.2-5215 shall be liable to be proceeded against and condemned.

At any time prior to the expiration of the 20-day detention period provided by § 3.2-5215, the Commissioner shall notify the attorney for the Commonwealth for the city or county where such detention was made in writing. Upon receiving written notification, the attorney for the Commonwealth shall forthwith file in the name of the Commonwealth any information against the detained product in the clerk's office of the circuit court of the county or city where the detention was made. Upon the filing of such information, the clerk of court shall forthwith issue a warrant directing the sheriff to seize the detained product and see to its transportation to a suitable place of storage that, if necessary, may be outside of the county or city served by the sheriff. Should the attorney for the Commonwealth, for any reason, fail to file such information within five days after receipt of written notice of detention of the product, the same may, at any time within 30 days thereafter be filed by the Attorney General and the proceedings thereon shall be the same as if filed by the attorney for the Commonwealth.

Such information shall allege the seizure, and set forth in general terms the grounds of forfeiture of the seized product, and shall petition that the same be condemned and sold and the proceeds disposed of according to law, and that all persons concerned or interested be cited to appear and show cause why such product should not be condemned and sold to enforce the forfeiture. After the filing of the information, the attorney for the Commonwealth shall apply to the judge of the court wherein the information was filed for a hearing on the matters contained in the information. The judge of the court shall move the cause to the head of the docket and the hearing shall be had as soon as practical to do so.

The owner of and all persons in any manner then indebted or liable for the purchase price of the product and any person having a lien thereon, if they be known to the attorney who files the information, shall be made parties defendant thereto, and shall be served with the notice provided for, in the manner provided by law for serving a notice, at least 10 days before the day specified for the hearing on the information, if they are residents of the Commonwealth; and if they are unknown or nonresidents, or cannot with reasonable diligence be found in the Commonwealth, they shall be deemed sufficiently served by publication of the notice once a week for two successive weeks in some newspaper published in the county or city, or if there be none published therein, then in some newspaper having general circulation, and a notice shall be sent by registered mail of such seizure to the last known address of the owner of the detained product.

Any person claiming to be the owner of such product or to hold a lien thereon, may appear at any time before final judgment of the trial court, and be made a party defendant to the information so filed, which appearance shall be by answer, under oath, in which shall be clearly set forth the nature of such defendant's claim, whether as owner or as lienor, and if as owner, the right or title by which he claims to be such owner, and if lienor, the amount and character of his lien, and the evidence thereof; and in either case, such defendant shall set forth fully any reason or cause that he may have to show against the forfeiture of the product.

If such product is condemned, it shall, after entry of the decree, be disposed of by destruction or sale as the court may direct and the proceeds, if sold, less the court costs and fees, and storage and other proper expenses, shall be paid into the state treasury, but the product shall not be sold contrary to the regulations of the Board; provided, that upon the execution and delivery of a good and sufficient bond conditioned that the product shall not be sold or otherwise disposed of contrary to the regulations of the Board, the court may direct that such product be delivered to a claimant thereof, who may have appeared in the proceedings, subject to such supervision by the Commissioner as is necessary to insure compliance with the applicable regulations. When a decree of condemnation is entered against a product and it is released under bond, or destroyed, court costs and fees, and storage and other proper expenses may, as the court deems just, be awarded against the person, if any, intervening as claimant of the product.

If a claimant denies for any reason that the product to be condemned is subject to condemnation as provided by this section, and shall demand a trial by jury of the issue thus made, then the court shall, under proper instructions, submit the same to a jury of five, to be selected and empanelled as prescribed by law. If the jury finds in favor of the claimant, or if the court, trying such issue without a jury, so finds, the judgment of the court shall be to entirely relieve the product from forfeiture, and no costs shall be taxed against such claimant.

1970, c. 48, § 3.1-562.9; 2008, c. 860.

Any violation of the provisions of this article or the regulations adopted hereunder, or failure to comply with such provisions or regulations, is a Class 1 misdemeanor and punished as provided by law. Each day of such failure or violation shall be a separate offense as such.

1970, c. 48, § 3.1-562.10; 2008, c. 860.