Code of Virginia

Code of Virginia
Title 3.2. Agriculture, Animal Care, and Food
5/26/2019

Subtitle IV. Food and Drink; Weights and Measures.

Chapter 51. Food and Drink.

Article 1. General Provisions.

§ 3.2-5100. Duties of Commissioner.

A. It shall be the duty of the Commissioner to inquire into the dairy and food and drink products, and the articles that are food or drinks, or the necessary constituents of the food or drinks, that are manufactured, sold, exposed, or offered for sale in the Commonwealth.

B. The Commissioner may procure samples of the dairy and food products covered by this chapter and may have the samples analyzed.

C. The Commissioner shall make a complaint against the manufacturer or vendor of any food or drink or dairy products that are adulterated, impure, or unwholesome, in contravention of the laws of the Commonwealth, and furnish all evidence to obtain a conviction of the offense charged. The Commissioner may make complaint and cause proceedings to be commenced against any person for enforcement of the laws relative to adulteration, impure, or unwholesome food or drink, and in such cases he shall not be obliged to furnish security for costs.

Code 1950, §§ 3-323 to 3-325; 1966, c. 702, §§ 3.1-402 to 3.1-404; 1972, c. 741; 2008, c. 860.

§ 3.2-5101. Board authorized to adopt regulations; exception.

A. Whenever in the judgment of the Commissioner action will promote honesty and fair dealing in the interest of consumers, the Board shall adopt regulations fixing and establishing for any food or class of food: labeling requirements; a reasonable definition and standard of identity; and a reasonable standard of quality and fill of container, or tolerances or limits of variability. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the Board shall, for the purpose of promoting honesty and fair dealing in the interest of the consumers, designate the optional ingredients that shall be named on the label. The definitions and standards so adopted may conform so far as practicable to the definitions and standards promulgated by the Secretary of Health and Human Services under authority conferred by Section 401 of the federal act.

B. Any regulations adopted pertaining to this section shall not apply to nonprofit organizations holding one-day food sales. The Commissioner may disseminate to nonprofit organizations educational materials related to the safe preparation of food for human consumption.

Code 1950, § 3-314; 1966, c. 702, § 3.1-394; 1996, c. 728; 2002, c. 218; 2008, c. 860.

§ 3.2-5102. Commissioner to have access to factories, warehouses, and other places; examination of samples.

The Commissioner shall have free access at all reasonable hours to any factory, warehouse, or establishment in which foods are manufactured, processed, packed, or held for introduction into commerce, or to enter any vehicle being used to transport or hold such foods in commerce, or any store, restaurant, or other place in which food is being offered for sale for the purpose of:

1. Inspecting such factory, warehouse, establishment, or vehicle to determine if any of the provisions of this chapter are being violated; and

2. Securing samples or specimens of any food after paying or offering to pay for such sample. It shall be the duty of the Commissioner to make or cause to be made examinations of samples secured under the provisions of this section to determine whether or not any provision of this chapter is being violated.

This section shall not apply to nonprofit organizations holding one-day food sales.

Code 1950, § 3-319; 1966, c. 702, § 3.1-399; 2003, c. 420; 2008, c. 860.

§ 3.2-5103. Standards of variability permissible to any article of food.

The Commissioner with the approval of the Board shall establish and publish standards or limits of variability permissible in any article of food, and these standards shall be the standards before all courts. When standards have been or may be established by the U.S. Department of Health and Human Services, they shall be accepted by the Department and published as standards for the Commonwealth, but such standards shall not go into effect until a reasonable time after publication. The Commissioner, with the approval of the Board, shall have authority to adopt uniform regulations for carrying out the provisions of this section.

Code 1950, § 3-283; 1966, c. 702, § 3.1-364; 2008, c. 860.

§ 3.2-5104. Chemical work incident to execution of laws.

The chemical work incident to the execution of the provisions of this chapter shall be provided by the Division of Consolidated Laboratory Services.

Code 1950, § 3-282; 1966, c. 702, § 3.1-363; 1972, c. 741; 2008, c. 860.

Article 2. Sanitary Requirements.

§ 3.2-5105. 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.

§ 3.2-5106. Sanitary conditions of food establishments.

A. Every place used for the preparation for sale, manufacture, packing, storage, sale, or distribution of any food shall be properly lighted, drained, plumbed, and ventilated, and shall be operated with strict regard for the purity and wholesomeness of the food produced, and with strict regard to the influence of such conditions upon the health of any worker or employee.

B. The floors, sidewalls, ceilings, furniture, receptacles, implements, and machinery of every place where food is manufactured, packed, stored, sold, or distributed, shall at all times be kept in a clean, healthful, and sanitary condition.

C. All refuse, dirt, and waste products subject to decomposition and fermentation incident to the manufacture, preparation, packing, storing, selling, and distributing of food, shall be removed from the premises daily.

Code 1950, §§ 3-286, 3-287, 3-289; 1966, c. 702, §§ 3.1-366, 3.1-367, 3.1-369; 2008, c. 860.

§ 3.2-5107. Plastering and painting sidewalls and ceilings; interior woodwork; floors.

A. Any place where food is manufactured, produced, prepared, processed, packed, or exposed shall: (i) keep its sidewalls and ceilings well plastered, wainscoted, or ceiled, preferably with metal or lumber, and shall be kept oil-painted or well limewashed; and (ii) keep all interior woodwork clean and washed with soap and water.

B. Every building, room, basement, or cellar occupied or used for the preparation, manufacture, packing, storage, sale, or distribution of food, shall have an impermeable floor made of cement or tile, laid in cement, brick, wood, or other suitable nonabsorbent material that can be flushed and washed clean with water.

Code 1950, §§ 3-292 to 3-294; 1966, c. 702, §§ 3.1-372 to 3.1-374; 2008, c. 860.

§ 3.2-5108. Sleeping arrangements.

The sleeping places for persons employed in any food establishment shall be separate and apart from the room in which food products are manufactured or stored, and no person shall sleep in any place where flour, meal, or any manufactured products thereof are manufactured or stored.

Code 1950, § 3-296; 1966, c. 702, § 3.1-375; 2008, c. 860.

§ 3.2-5109. Washrooms and toilets.

Any place where food is manufactured, prepared, exposed, or offered for sale shall have a convenient washroom and toilet of sanitary construction, but such toilet shall be entirely separate and apart from any room used for the manufacture or storage of food products.

Code 1950, § 3-301; 1966, c. 702, § 3.1-380; 2008, c. 860.

§ 3.2-5110. Daily cleaning of instruments and machinery.

All trucks, trays, boxes, baskets, buckets, and other receptacles, chutes, platforms, racks, tables, shelves, and all knives, saws, cleavers, and other utensils and machinery used in moving, handling, cutting, chopping, mixing, canning, and any other process, shall be thoroughly cleaned daily.

Code 1950, § 3-290; 1966, c. 702, § 3.1-370; 2008, c. 860.

§ 3.2-5111. Food protected from flies, dust, and dirt.

Food in the process of manufacture, preparation, packing, storing, sale, or distribution, shall be protected from flies, dust, dirt, and all other foreign or injurious contamination.

Code 1950, § 3-288; 1966, c. 702, § 3.1-368; 2008, c. 860.

§ 3.2-5112. Clothing of employees.

The clothing of any worker or employee shall be clean.

Code 1950, § 3-291; 1966, c. 702, § 3.1-371; 2008, c. 860.

§ 3.2-5113. Employees with contagious or infectious disease.

No employer shall knowingly permit or require any person to work in any place where food is manufactured, produced, prepared, processed, packed, or exposed, who is afflicted with any contagious or infectious disease, or with any skin disease.

Code 1950, § 3-298; 1966, c. 702, § 3.1-377; 2008, c. 860.

§ 3.2-5114. Smoking.

Smoking is prohibited in workrooms of food-producing establishments.

Code 1950, § 3-300; 1966, c. 702, § 3.1-379; 2008, c. 860.

§ 3.2-5115. Animals.

No animal shall be permitted in any area used for the manufacture or storage of food products. A guard or guide animal may be allowed in some areas if the presence of the animal is unlikely to result in contamination of food, food contact surfaces, or food packaging materials. Additionally, a dog may be allowed within a designated area inside or on the premises of, except in any area used for the manufacture of food products, a distillery licensed pursuant to § 4.1-206, a winery or farm winery licensed pursuant to § 4.1-207, or a brewery or farm brewery licensed pursuant to § 4.1-208.

Code 1950, § 3-297; 1966, c. 702, § 3.1-376; 1997, c. 122; 2008, c. 860; 2018, c. 819.

§ 3.2-5116. Metal beverage containers with detachable metal pull tabs.

It is unlawful for any person to sell or offer for sale at retail within the Commonwealth any metal beverage container or any composite beverage container designed and constructed with an all metal pull tab opening device that detaches from the container when the container is opened in a manner normally used to empty the contents of the container. For the purpose of this section, the term "beverage" shall mean beer as defined in § 4.1-100, or other malt beverages and mineral waters, soda water and formulated soft drinks, with or without carbonation.

1976, c. 774, § 3.1-382.1; 1979, c. 358; 2008, c. 860.

§ 3.2-5117. Penalty for violation; misdemeanor.

Any person violating any of the provisions of §§ 3.2-5106 through 3.2-5116 is guilty of a Class 3 misdemeanor.

Code 1950, § 3-301.1; 1966, c. 702, § 3.1-381; 2008, c. 860.

§ 3.2-5118. Sterilization of bottles and containers.

A. All bottles, jugs, cans, barrels, and containers used in the packing, bottling, storage, distribution, and sale of nonalcoholic beverage and drink products shall be sterilized by one of the following methods before using:

1. By sterilization with boiling water or live steam; or

2. By soaking in a hot caustic solution that shall contain not less than three percent alkali, of which not less than 60 percent is caustic, or its equivalent in cleansing or germicidal effectiveness as such solutions are commonly used in the soaker-type washing and sterilizing equipment.

If other equally efficient methods of sterilization are developed, the Commissioner may approve those methods of sterilization.

B. Any violation of this section is a Class 1 misdemeanor.

Code 1950, § 3-302; 1966, c. 702, § 3.1-382; 2008, c. 860.

§ 3.2-5119. Transportation or storage under unsanitary conditions; penalty.

A. It shall be unlawful for any person or any common carrier to permit unsanitary conditions to exist in the transportation or storage of an article of food intended for introduction into commerce, if the unsanitary conditions may contaminate the article of food.

B. Any person who violates any of the provisions of this section is guilty of a Class 2 misdemeanor.

C. The Commissioner is empowered to enter and inspect all stores, warehouses, and any and all means or places of transportation or storage of articles of food. Any person who hinders or obstructs the Commissioner in the discharge of the authority or duty imposed upon him by the provisions of this section, is guilty of a Class 2 misdemeanor.

D. Whenever any article of food is transported or stored under unsanitary conditions, the proceedings for the enforcement of this section may be instituted and maintained in any county or city through which or in which such article of food has been or is so transported or stored under unsanitary conditions.

Code 1950, § 3-305; 1966, c. 702, § 3.1-385; 2008, c. 860.

Article 3. Adulteration, Misbranding, and False Advertising.

§ 3.2-5120. Definitions.

As used in this article, unless the context requires a different meaning:

"Advertisement" means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of food.

"Butter" means the food product generally known as butter, which is made exclusively from milk or cream, or both, with or without common salt, and with or without coloring matter, and containing not less than 80 percent by weight of milk fat, having allowed for all tolerances.

"Contaminated with filth" applies to any food not securely protected from dust, dirt, and as far as may be necessary by all reasonable means, from all foreign or injurious contaminations.

"Federal act" means the Federal Food, Drug and Cosmetic Act (Title 21 U.S.C. § 301 et seq.).

"Food" means all articles used for food, drink, confectionery, or condiment, for humans or other animals, whether simple, mixed, or compound, and all substances or ingredients used in the preparation thereof.

"Immediate container" does not mean package liners.

"Label" means a display of written, printed, or graphic matter upon the immediate container of any article.

"Labeling" means all labels and other written, printed, or graphic matter upon an article or any of its containers or wrappers, or accompanying such article.

"Selling of food" means the manufacture, production, processing, packing, exposure, offer, possession, and holding of any such article for sale; the sale of any such article; and the supplying of any such articles in the conduct of any food establishment.

Code 1950, § 3-307; 1966, c. 702, § 3.1-387; 2008, c. 860.

§ 3.2-5121. Authority to adopt regulations; conformity with federal regulations; hearings; enforcement of article; review of regulations.

A. The Board is authorized to adopt regulations for the efficient enforcement of this article, unless that authority is specifically granted to the Commissioner. The Board may make the regulations adopted under this article conform, insofar as practicable, with those adopted under the federal act. Notwithstanding any other requirement under the Administrative Process Act (§ 2.2-4000 et seq.) to the contrary, the Commissioner may adopt any regulation under the federal act without public hearing. Such regulation shall be effective upon filing with the Registrar of Regulations. The Board, at its next regular meeting, shall adopt the regulation after notice but without public hearing unless a petition is filed in accordance with subsection F.

B. The Board may adopt any edition of the Food and Drug Administration's Food Code, or supplement thereto, or any portion thereof, as regulations, with any amendments as it deems appropriate. In addition, the Board may repeal or amend any regulation adopted pursuant to this subsection. No regulations adopted or amended by the Board pursuant to this subsection shall establish requirements for any license, permit, or inspection unless such license, permit, or inspection is otherwise provided for in this title. The provisions of the Food and Drug Administration's Food Code shall not apply to farmers selling their own farm-produced products directly to consumers for their personal use, whether such sales occur on such farmer's farm or at a farmers' market, unless such provisions are adopted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).

C. The provisions of the Administrative Process Act (§ 2.2-4000 et seq.) shall not apply to the adoption of any regulation pursuant to subsection B if the Board of Health adopts the same edition of the Food and Drug Administration's Food Code, or the same portions thereof, pursuant to subsection C of § 35.1-14, and the regulations adopted by the Board and the Board of Health have the same effective date. In the event that the Board of Health adopts regulations pursuant to § 2.2-4012.1, the effective date of the Board's regulations may be any date on or after the effective date of the regulations adopted by the Board of Health.

Notwithstanding any exemption to the contrary, a regulation adopted pursuant to subsection B shall be subject to the requirements set out in §§ 2.2-4007.03, 2.2-4007.04, and 2.2-4007.05, and shall be published in the Virginia Register of Regulations. After the close of the 60-day comment period, the Board may adopt a final regulation, with or without changes. Such regulation shall become effective 15 days after publication in the Virginia Register, unless the Board has withdrawn or suspended the regulation, or a later date has been set by the Board. The Board shall also hold at least one public hearing on the proposed regulation during the 60-day comment period. The notice for such public hearing shall include the date, time, and place of the hearing.

D. Hearings authorized or required by this article shall be conducted by the Board, the Commissioner, or such officer, agent, or employee as the Board may designate for the purpose.

E. The Commissioner shall coordinate enforcement of this article with the applicable federal agencies charged with enforcement of the federal act, in order to avoid unnecessary or unjustified conflict between enforcement of this article and the federal act as to Virginia food manufacturers, processors, packers, and retailers.

F. The Board or Commissioner shall from time to time for good cause shown to review the regulations and enforcement guidelines adopted pursuant to this article. If the Commissioner finds that any federal regulation or enforcement guideline that includes any tolerance or action level that does not protect the health and welfare of the citizens of the Commonwealth, he shall petition the appropriate federal agency to change the federal regulation or enforcement guideline.

G. The Commissioner or any interested party for good cause shown may request the Board to hold a public hearing concerning any regulation or enforcement guideline. If the Board after hearing finds that the regulation or enforcement guideline does not protect the health and welfare of the citizens of the Commonwealth, it shall adopt a new regulation or enforcement guideline. Within the limits of personnel and funds available all state agencies and institutions shall cooperate and assist in furnishing information and data as to whether the regulations or enforcement guidelines in question protect the health and welfare of the citizens of the Commonwealth.

H. No regulation adopted or amended by the Board pursuant to subsection B shall require that commercially slaughtered or processed rabbits that are offered for sale or service be slaughtered or processed under (i) the voluntary inspection program that is conducted by the state agency that has animal health jurisdiction or (ii) a voluntary inspection program that is administered by the U.S. Department of Agriculture. However, nothing in this subsection shall exempt any person who is commercially slaughtering or processing rabbits that are offered for sale or service from any other applicable provision of this chapter.

Code 1950, § 3-318; 1966, c. 702, § 3.1-398; 1977, c. 440; 2003, c. 695; 2004, c. 802; 2007, cc. 873, 916; 2008, c. 860; 2018, c. 674.

§ 3.2-5122. Adulterated food.

A food shall be deemed to be adulterated if:

1. It bears or contains any poisonous or deleterious substance that may render it injurious to health; but if the substance is not an added substance the food shall not be considered adulterated under this subdivision if the quantity of the substance in the food does not ordinarily render it injurious to health;

2. It bears or contains any added poisonous or added deleterious substance that is unsafe within the meaning of § 3.2-5125;

3. It consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food;

4. It has been produced, prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health;

5. It is the product of a diseased animal, an animal that has died otherwise than by slaughter, or an animal that has been fed upon the uncooked offal from a slaughterhouse;

6. Its container is composed, in whole or in part, of any poisonous or deleterious substance that may render the contents injurious to health;

7. Any valuable constituent has been, in whole or in part, omitted or abstracted;

8. Any substance has been substituted in whole or in part for a valuable constituent;

9. Damage or inferiority has been concealed in any manner;

10. Any substance has been added or mixed or packed with the food so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is;

11. It is confectionery and it bears or contains any alcohol or nonnutritive article or substance, except harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one percent, harmless natural gum, and pectin. In addition, any confectionery that: (i) contains five percent or less by volume of alcohol or; (ii) any chewing gum that contains harmless nonnutritive masticatory substances, shall not be deemed adulterated; or

12. It bears or contains a coal-tar color other than one from a batch that has been certified by the U.S. Department of Health and Human Services.

Code 1950, § 3-315; 1966, c. 702, § 3.1-395; 1988, c. 110; 2008, c. 860.

§ 3.2-5123. Misbranded food.

A. A food shall be deemed to be misbranded:

1. If its labeling is false or misleading in any particular.

2. If any word, statement, or other information appearing on the label does not also appear on the outside container or wrapper, if present, of the retail package of such article, or is not easily legible through the outside container or wrapper.

3. If any word, statement, or other information required by this article is not prominently placed on the label with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

4. Unless its label bears:

a. The common or usual name of the food, if there is any;

b. When the food is fabricated from two or more ingredients, the common or usual name of each ingredient. Spices, flavorings, and colors not required to be certified under section 721(c) of the federal act, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each; and

c. When the food purports to be a beverage containing vegetable or fruit juice, a statement with appropriate prominence on the information panel of the total percentage of such fruit or vegetable juice contained in the food.

To the extent that the Commissioner believes that compliance with the requirements of subdivision 4 b is impractical or results in deception or unfair competition, exemptions shall be established by the Commissioner. The requirements of subdivision 4 b shall not apply to any carbonated beverages, ingredients of which have been fully and correctly disclosed to the extent prescribed by subdivision 4 b to the Commissioner in an affidavit.

5. If it is offered for sale under the name of another food.

6. If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word, imitation, and immediately thereafter, the name of the food imitated.

7. If its container is made, formed, or filled as to be misleading.

8. If in package form, unless it bears a label containing: (i) the name and place of business of the manufacturer, packer, or distributor; (ii) the name of the article; (iii) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; provided, that under clause (iii) of this subdivision reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the Board.

9. If it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by § 3.2-5101 unless: (i) it conforms to such definition and standard; and (ii) its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such regulations, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food.

10. If it purports to be or is represented as:

a. A food for which a standard of quality has been prescribed by regulations as provided by § 3.2-5101 and its quality falls below such standard unless its label bears, in such manner and form as regulations specify, a statement that it falls below such standards; or

b. A food for which a standard or standards of fill of container have been prescribed by regulations as provided by § 3.2-5101, and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard.

11. If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the Board requires through regulation to fully inform purchasers as to its value for such uses.

12. If it bears or contains any artificial flavoring, artificial coloring or chemical preservative, unless it bears labeling stating that fact; provided that to the extent that the Commissioner believes that compliance with the requirements of this subdivision is impracticable, exemptions shall be established by the Commissioner; provided, that the provisions of this subdivision and of subdivisions 4 and 9 with respect to artificial colorings shall not apply in the case of butter, cheese or ice cream.

13. If it is a food intended for human consumption, it is offered for sale, and its label and labeling do not comply with the requirements of Section 403 (q) of the federal act pertaining to nutrition information.

14. If it is a food intended for human consumption, it is offered for sale, and its label and labeling do not comply with the requirements of Section 403 (r) of the federal act pertaining to nutrient content claims and health claims.

B. If an article is alleged to be misbranded because the label is misleading, or if an advertisement is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading, there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device, sound, or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences that may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement or under such conditions of use as are customary or usual.

Code 1950, §§ 3-307, 3-316; 1966, c. 702, §§ 3.1-387, 3.1-396; 1996, c. 728; 2008, c. 860.

§ 3.2-5124. Labeling as kosher and halal; penalty.

It is unlawful to label any repackaged food or food product or display or offer for sale any unwrapped food or food product that represents the food or food product as kosher or halal without indicating the person or entity authorizing such designation by providing the name or symbol of the authority or providing a phone number or website to access the information.

Any person who knowingly violates any provision of this section is guilty of a Class 3 misdemeanor.

2006, cc. 392, 485, § 3.1-396.1; 2008, c. 860.

§ 3.2-5125. Poisonous or deleterious substance added to food.

Any poisonous or deleterious substance added to any food, except if it is required in the production of the food or cannot be avoided by good manufacturing practice, shall be deemed to be unsafe for purposes of subdivision 2 of § 3.2-5122; but when any poisonous or deleterious substance is required or cannot be avoided, the Board shall adopt regulations limiting the quantity to such extent as it finds necessary for the protection of public health. Any quantity exceeding the limits established by the Board shall also be deemed to be unsafe for purposes of the application of subdivision 2 of § 3.2-5122. While such regulation is in effect limiting the quantity of any poisonous or deleterious substance in any food, such food shall not, by reason of bearing or containing any added amount of such substance, be considered to be adulterated within the meaning of subdivision 1 of § 3.2-5122 if the added amount is not in excess of the limits established by the Board. In determining the quantity of any added substance to be tolerated in or on different articles of food, the Board shall take into account the extent to which the use of such substance is required or cannot be avoided in the production of each article, and the other ways in which the consumer may be affected by the same or other poisonous or deleterious substances.

Code 1950, §§ 3-317, 3-343; 1966, c. 702, §§ 3.1-397, 3.1-422; 2008, c. 860.

§ 3.2-5126. Prohibited acts; exceptions; Commissioner may seek injunction; penalties.

A. The following acts and causing the following acts within the Commonwealth are unlawful:

1. The manufacture, sale, or delivery, holding or offering for sale of any food that is adulterated or misbranded.

2. The adulteration or misbranding of any food.

3. The receipt in commerce of any food that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise.

4. The dissemination of any false advertisement.

5. The refusal to permit entry or inspection, or to permit the taking of a sample, as authorized by § 3.2-5102.

6. The giving of a guaranty or undertaking concerning a food, which guaranty or undertaking is false.

7. The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the performing of any other act with respect to a food, if such act is done while an article is held for sale and results in the article being misbranded.

8. Forging, counterfeiting, simulating, or falsely representing, or without proper authority using any mark, stamp, tag, label, or other means of identification authorized or required by regulations adopted under the provisions of this article.

9. The use of sulfiting agents as preservatives on raw fruits and vegetables being offered for sale to the public for human consumption.

B. Any person who violates any of the provisions of subsection A is guilty of a Class 1 misdemeanor.

C. A wholesale or retail merchant who purchases food or drink in a closed container from a reputable manufacturer shall not be in violation of subsection A unless such person knowingly violated the provisions of subsection A. It shall not be a violation of subdivision A 1, A 3 or A 6, if a person can establish that he relied upon a guaranty or undertaking signed by the individual from or through whom he received any food in good faith, to the effect that such food is not adulterated or misbranded. The guaranty or undertaking shall contain the name and address of the person who provided the guaranty or undertaking, or a place of business, or an agent or representative on whom process may be served, in the Commonwealth.

D. No publisher, broadcaster, or agency or medium for the dissemination of an advertisement, except the manufacturer, packer, distributor, or seller of the article to which a false advertisement relates, shall be liable under this section by reason of the dissemination by him of such false advertisement, unless he has refused, on the request of the Commissioner to furnish the name and post-office address of the manufacturer, packer, distributor, seller, or advertising agency, residing in the Commonwealth who caused him to disseminate such advertisement.

E. The Commissioner may apply to an appropriate court for, and such court shall have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction restraining any person from violating any provision of subsection A, regardless of whether or not an adequate remedy at law exists. But whenever it appears to the satisfaction of the court in the case of a newspaper, periodical, or other publication that: (i) restraining the dissemination of a false advertisement in any particular issue of such publication would delay the delivery of such issue; and (ii) such delay would be due to the method by which the manufacture and distribution of such publication is customarily conducted by the publisher in accordance with sound business practice, and not to any method or device adopted for the evasion of this section or to prevent or delay the issuance of an injunction or restraining order with respect to such false advertisement or any other advertisement, the court shall exclude such issue from the operation of the restraining order or injunction.

Code 1950, §§ 3-308 to 3-310, 3-344; 1956, c. 529; 1966, c. 702, §§ 3.1-388, 3.1-389, 3.1-390, 3.1-423; 1986, c. 200; 2005, c. 681; 2008, c. 860.

§ 3.2-5127. Removal of certain labels from meat packaging prohibited; penalty.

It is unlawful for any person holding or offering for retail sale any meat, poultry, or seafood in packaged form who affixes to such food a label containing a date by which such food is to be sold, to willfully remove, alter, mutilate, destroy, or obscure the dated portion of the label on the package, unless the dated portion of the label is removed in connection with the repackaging of such food, or to correct bona fide typographical errors. If the dated portion of the label is removed and a replacement label is attached when such food is repackaged, the replacement label shall bear the original date by which the food is to be sold or an earlier date. Any person who violates any provision of this section is guilty of a Class 3 misdemeanor.

This section shall not apply to meat, poultry, or seafood that is canned or cured.

1993, c. 106, § 3.1-388.1; 2008, c. 860.

§ 3.2-5128. Duty of attorney for the Commonwealth when violation reported; Commissioner to give notice.

A. If the Commissioner institutes criminal proceedings against any person for any violation pursuant to this article, then: (i) he shall give appropriate notice to the person and give an opportunity for the person to present his views before the Commissioner, either orally or in writing, in person or by attorney, with regard to such contemplated proceeding, and (ii) he may report the violation to an attorney for the Commonwealth.

B. It shall be the duty of each attorney for the Commonwealth, to whom the Commissioner reports any violation of this article, to cause appropriate proceedings to be instituted in the appropriate courts without delay and to be prosecuted in the manner required by law.

C. Nothing in this article shall require the Commissioner to report minor violations of this article to the attorney for the Commonwealth, whenever he believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

Code 1950, §§ 3-312, 3-313; 1966, c. 702, §§ 3.1-392, 3.1-393; 2008, c. 860.

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.

Chapter 51.1. Produce Safety.

§ 3.2-5146. (For expiration date, see Editor's notes) Covered produce; exclusion; exemption.

A. As used in this chapter, unless the context requires a different meaning, "covered produce" means food that is produce within the meaning of 21 C.F.R. Part 112 and that is a raw agricultural commodity, as defined in 21 C.F.R § 112.3(c), unless excluded under subsection C or exempted under subsection D.

B. "Covered produce" includes all of the following:

1. Fruits and vegetables such as almonds, apples, apricots, apriums, artichokes-globe-type, Asian pears, avocados, babacos, bananas, Belgian endive, blackberries, blueberries, boysenberries, brazil nuts, broad beans, broccoli, brussels sprouts, burdock, cabbages, Chinese cabbages (bok choy, mustard, and Napa), cantaloupes, carambolas, carrots, cauliflower, celeriac, celery, chayote fruit, cherries (sweet), chestnuts, chicory (roots and tops), citrus (such as clementine, grapefruit, lemons, limes, mandarin, oranges, tangerines, tangors, and uniq fruit), cowpea beans, cress-garden, cucumbers, curly endive, currants, dandelion leaves, fennel-Florence, garlic, genip, gooseberries, grapes, green beans, guavas, herbs (such as basil, chives, cilantro, oregano, and parsley), honeydew, huckleberries, Jerusalem artichokes, kale, kiwifruit, kohlrabi, kumquats, leek, lettuce, lychees, macadamia nuts, mangos, other melons (such as Canary, Crenshaw, and Persian), mulberries, mushrooms, mustard greens, nectarines, onions, papayas, parsnips, passion fruit, peaches, pears, peas, peas-pigeon, peppers (such as bell and hot), pine nuts, pineapples, plantains, plums, plumcots, quince, radishes, raspberries, rhubarb, rutabagas, scallions, shallots, snow peas, soursop, spinach, sprouts (such as alfalfa and mung bean), strawberries, summer squash (such as patty pan, yellow, and zucchini), sweetsop, Swiss chard, taro, tomatoes, turmeric, turnips (roots and tops), walnuts, watercress, watermelons, and yams; and

2. A mix of intact fruits and vegetables, such as a fruit basket.

C. "Covered produce" does not include:

1. Produce that is rarely consumed raw, specifically the produce on the following exhaustive list: asparagus; beans, black; beans, great Northern; beans, kidney; beans, lima; beans, navy; beans, pinto; beets, garden (roots and tops); beets, sugar; cashews; cherries, sour; chickpeas; cocoa beans; coffee beans; collards; corn, sweet; cranberries; dates; dill (seeds and weed); eggplants; figs; ginger; hazelnuts; horseradish; lentils; okra; peanuts; pecans; peppermint; potatoes; pumpkins; squash, winter; sweet potatoes; and water chestnuts;

2. Produce that is produced by an individual for personal consumption or produced for consumption on the farm or another farm under the same management; or

3. Produce that is not a raw agricultural commodity, as defined in 21 C.F.R § 112.3(c).

D. Produce is eligible for exemption from the requirements of this chapter under the following conditions:

1. The produce receives commercial processing that adequately reduces the presence of microorganisms of public health significance;

2. The covered farm discloses in documents accompanying the produce, in accordance with the practice of the trade, that the food is "not processed to adequately reduce the presence of microorganisms of public health significance";

3. The covered farm complies with the requirements of 21 C.F.R. § 112.2(b)(3);

4. The covered farm complies with the requirements of 21 C.F.R. § 112.2(b)(4);

5. The requirements of 21 C.F.R. § 112 Subpart A and Subpart Q apply to such produce; and

6. An entity that provides a written assurance under 21 C.F.R. § 112.2(b)(3)(i) or (ii) acts consistently with the assurance and documents its actions taken to satisfy the written assurance.

2017, c. 574.

§ 3.2-5147. (For expiration date, see Editor's notes) Covered farm; exemption.

A. Except as provided in subsection B, a farm, as defined in 21 C.F.R § 112.3(c), or farm mixed-type facility, as defined in 21 C.F.R § 112.3(c), with an average annual monetary value of produce, as defined in 21 C.F.R. § 112.3(c), sold during the previous three-year period of more than $25,000 on a rolling basis, adjusted for inflation using 2011 as the baseline year for calculating the adjustment, is a "covered farm" as used in this chapter, unless the context requires a different meaning. A covered farm shall comply with all applicable requirements of 21 C.F.R Part 21, this chapter, or any provision of a regulation of the Board adopted pursuant to § 3.2-5148 when conducting a covered activity, as defined in 21 C.F.R § 112.3(c), on covered produce.

B. A farm is not subject to this chapter if it satisfies the requirements in 21 C.F.R. § 112.5, and the U.S. Food and Drug Administration has not withdrawn the farm's exemption in accordance with the requirements of 21 C.F.R. § 112 Subpart R.

C. A farm is eligible for a qualified exemption and associated modified requirements in a calendar year if:

1. During the previous three-year period preceding the applicable calendar year, the average annual monetary value of the food, as defined in 21 C.F.R § 112.3(c), the farm sold directly to qualified end-users, as defined in 21 C.F.R. § 112.3(c), during such period exceeded the average annual monetary value of the food the farm sold to all other buyers during that period; and

2. The average annual monetary value of all food, as defined in 21 C.F.R. § 112.3(c), the farm sold during the three-year period preceding the applicable calendar year was less than $500,000, adjusted for inflation, using 2011 as the baseline year for calculating the adjustment for inflation.

D. If a farm is eligible for a qualified exemption in accordance with 21 C.F.R. § 112.5, the farm is subject to the requirements of 21 C.F.R. § 112 Subparts A, O, Q, and R.

E. If a farm is eligible for a qualified exemption in accordance with 21 C.F.R. § 112.5, the farm is subject to the modified requirements established in 21 C.F.R. § 112.6(b).

2017, c. 574.

§ 3.2-5148. (For expiration date, see Editor's notes) Regulations.

The Board may adopt, in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), regulations necessary or convenient to carry out the purposes of this chapter.

2017, c. 574.

§ 3.2-5149. (For expiration date, see Editor's notes) Commissioner to have access to certain farms.

The Commissioner shall have access only at reasonable hours to any covered farm or any farm eligible for a qualified exemption in accordance with 21 C.F.R. § 112.5 for the purpose of (i) inspecting such farm to determine if any provision of this chapter or 21 C.F.R. Part 112 is being violated and (ii) securing samples or specimens to determine if any provision of this chapter or 21 C.F.R. Part 112 is being violated. The Commissioner shall make or cause to be made examinations of samples or specimens secured pursuant to this section to determine whether any provision of this chapter or 21 C.F.R. Part 112 is being violated.

2017, c. 574.

§ 3.2-5150. (For expiration date, see Editor's notes) Authority to seize covered produce.

If the Commissioner believes any covered produce on a covered farm that is being grown, kept, or exposed for sale or held in possession or under the control of any person to be in violation of any provision of 21 C.F.R. Part 112, this chapter, or regulations of the Board adopted pursuant to § 3.2-5148, the Commissioner is authorized to seize or take possession of such covered produce.

2017, c. 574.

§ 3.2-5151. (For expiration date, see Editor's notes) Authority to condemn or destroy covered produce.

A. If the Commissioner believes any covered produce on a covered farm that is being grown, kept, or exposed for sale or held in possession or under the control of any person to be in violation of any provision of 21 C.F.R. Part 112, this chapter, or regulations of the Board adopted pursuant to § 3.2-5148, the Commissioner is authorized to condemn, destroy, or require the destruction of such covered produce.

B. Prior to condemning, destroying, or requiring the destruction of covered produce pursuant to subsection A, the Commissioner shall seize the covered produce in accordance with § 3.2-5150 and either:

1. Secure written agreement to the condemnation or destruction, on a form to be provided by the Commissioner, from the person from whom the covered produce was seized; or

2. Make complaint before a magistrate pursuant to § 3.2-5152.

2017, c. 574.

§ 3.2-5152. (For expiration date, see Editor's notes) Proceeding for condemnation or destruction.

If unable to secure the written agreement to the condemnation or destruction in accordance with subdivision B 1 of § 3.2-5151, the Commissioner shall make complaint before a magistrate, or other officer authorized to issue summons, having jurisdiction where the covered produce was seized. The magistrate or other officer shall issue his summons to the person from whom the covered produce was 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 covered produce should not be condemned or destroyed. If the person from whom the covered produce was seized cannot be found, then the summons shall be served upon the person then in possession of the covered produce. The summons shall be served at least six days before the time of appearance mentioned therein. If the person from whom the covered produce was seized cannot be found, and no one can be found in possession of the covered produce, and the defendant does 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 appears upon the return day.

2017, c. 574.

§ 3.2-5153. (For expiration date, see Editor's notes) Judgment as to covered produce to be condemned or destroyed; procedure before an appropriate court; appeal; proceeds.

A. Unless otherwise shown or if the covered produce to be condemned or destroyed pursuant to § 3.2-5151 is found upon trial to be in violation of any provision of 21 C.F.R. Part 112, this chapter, or regulations of the Board adopted pursuant to § 3.2-5148, it shall be the duty of the general district court to render judgment that the covered produce 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, as defined in § 3.2-5129. 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.

B. The proceeds arising from any sale ordered pursuant to subsection A shall be disposed of in accordance with § 19.2-386.14.

2017, c. 574.

§ 3.2-5154. (For expiration date, see Editor's notes) Violations.

No covered farm or farm eligible for a qualified exemption in accordance with 21 C.F.R. § 112.5 shall violate any provision of 21 C.F.R. Part 112 or any provision of a regulation of the Board adopted pursuant to § 3.2-5148.

2017, c. 574.

§ 3.2-5155. (For expiration date, see Editor's notes) Impeding Commissioner.

No person shall impede, obstruct, hinder, or otherwise prevent or attempt to prevent the Commissioner, an inspector, or any other person in the performance of his duty in connection with this chapter.

2017, c. 574.

§ 3.2-5156. (For expiration date, see Editor's notes) Civil penalty.

Any person who violates any provision of this chapter or regulation of the Board adopted pursuant to § 3.2-5148 is subject to a civil penalty in an amount not to exceed $1,000 per violation. In determining the amount of any civil penalty, the Board shall give due consideration to (i) the history of the person's previous violations, (ii) the seriousness of the violation, and (iii) the demonstrated good faith of the person charged in attempting to achieve compliance with this chapter after being notified of the violation. Such penalty shall be collected by the Commissioner and the proceeds shall be deposited into the state treasury and credited to the Virginia Natural Resources Commitment Fund created pursuant to § 10.1-2128.1.

2017, c. 574.

Chapter 52. Milk, Milk Products, and Dairies.

Article 1. General Provisions.

§ 3.2-5200. Duty of Commissioner to foster dairy industry.

It shall be the duty of the Commissioner to foster and encourage the dairy industry of the Commonwealth, and for that purpose he shall investigate the general conditions of the creameries, cheese factories, condensed milk factories, skimming stations, milk stations, and farm dairies in the Commonwealth, with full power to enter upon any premises for such investigation, with the object in view of improving the quality and creating and maintaining uniformity of the dairy products of the Commonwealth. Should it become necessary in the judgment of the Commissioner, he may cause instruction to be given in any facility or in any locality of the Commonwealth, in order to promote the proper feeding and care of cows, or the practical operation of any plant producing dairy products, and in order to procure such a uniform and standard quality of dairy products in the Commonwealth.

Code 1950, § 3-341; 1966, c. 702, § 3.1-420; 2008, c. 860.

§ 3.2-5201. Conformity with regulations of U.S. Department of Health and Human Services and Department of Agriculture; compliance with Administrative Process Act.

In adopting regulations for the purpose of sanitation and to prevent deception, the Board shall be guided by those regulations recommended by the U.S. Department of Health and Human Services and the U.S. Department of Agriculture. The definitions and standards so adopted may conform, so far as practical, to the definitions and standards adopted or recommended by the Secretary of the U.S. Department of Health and Human Services or the U.S. Department of Agriculture. The regulations authorized by §§ 3.2-5212, 3.2-5213, and by this section shall be adopted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).

1970, c. 48, § 3.1-562.2; 2008, c. 860.

§ 3.2-5202. Sale of products not subject to local supervision.

Products produced, processed, or manufactured under the regulations adopted under this chapter may be sold in all localities in the Commonwealth and shall not be subject to regulation, by ordinance or otherwise, supervision or inspection of any political subdivision wherein the products are produced, processed, manufactured, or sold.

1970, c. 48, § 3.1-562.4; 1970, c. 49, § 3.1-530.5; 2008, c. 860.

§ 3.2-5203. Importing of products.

A. No regulation adopted under this chapter shall be construed to prohibit the sale within the Commonwealth of any product that is produced outside of the Commonwealth under laws or regulations of the exporting state or political subdivision that are substantially equivalent to regulations adopted under this article and that are enforced with equal effectiveness.

B. No Grade A raw milk shall be imported into the Commonwealth by any person who does not possess a permit issued under conditions prescribed by the Board. The Board shall adopt regulations for the importation of raw bulk milk from points beyond routine inspection of the Commonwealth to insure the quality of milk and milk products, to determine volume of product shipped into the Commonwealth, to be assured of the original source of production, and to provide for the best interest of the Commonwealth, and for the protection of the consuming public.

1970, c. 48, § 3.1-562.5; 1970, c. 49, § 3.1-530.6; 2008, c. 860.

§ 3.2-5204. Warning and punishment of persons using or furnishing impure milk.

Whenever it is determined by the Commissioner that any person is using, selling, or furnishing to any facility, milk dealer, the retail trade, or to any consumer of milk, any impure or unwholesome milk or cream, which impurity or unwholesomeness is caused by the unsanitary or filthy conditions of the premises where cows are kept or by the unsanitary or filthy care of handling of the cows, or from the use of unclean utensils or from unwholesome food, or from any other cause, such person shall first be notified and warned by the Commissioner not to use, sell, or furnish such milk or cream to any facility, milk dealers, the retail trade, or to any consumer of milk. Any person who fails to obey such notice and warning and continues to use, sell, or furnish to any skimming station, creamery, cheese factory, condensed milk factory, farm dairy, milk dealer, or to the retail trade impure or unwholesome milk or cream, is guilty of a Class 2 misdemeanor.

Code 1950, § 3-342; 1966, c. 702, § 3.1-421; 2008, c. 860.

§ 3.2-5205. Injunctions.

If any person violates any provision of this article or the regulations adopted hereunder, then either the Commissioner or the State Health Commissioner may petition any appropriate circuit court for relief by injunction, without being compelled to allege or prove that an adequate remedy at law does not exist.

1970, c. 49, § 3.1-530.8; 2008, c. 860.

Article 2. Standards of Quality, Grading, and Sanitary Standards.

§ 3.2-5206. Board authorized to establish standards and adopt regulations; guidance of State Health Commissioner.

A. The Board is authorized to establish definitions, standards of quality and identity, and to adopt and enforce regulations dealing with the issuance of permits, production, importation, processing, grading, labeling, and sanitary standards for milk, milk products, market milk, market milk products, and those products manufactured or sold in semblance to or as substitutes for milk, milk products, market milk, market milk products. Regulations concerning the processing and distributing of Grade A market milk and Grade A market milk products shall be adopted with the advice and guidance of the State Health Commissioner. The Board shall adopt regulations for the issuance of the permits referred to in § 3.2-5208. The Board may require permits in addition to those prescribed by the terms of this article, and shall adopt regulations concerning the conditions under which any additional permits shall be issued.

B. In adopting any regulation pursuant to this section, the Board may adopt by reference:

1. Any regulation or part thereof under federal law that pertains to milk or milk products, amending the federal regulation as necessary for intrastate application.

2. Any model ordinance or regulation issued under federal law, including the Pasteurized Milk Ordinance (Public Health Service/Food and Drug Administration Publication Number 229) and the U.S. Department of Agriculture's Milk for Manufacturing Purposes and its Production and Processing Recommended Requirements (hereafter the USDA Recommended Requirements), amending it as necessary for intrastate application and to: (i) require milk on each dairy farm to be cooled and stored at a temperature of 40 degrees Fahrenheit or less, but not frozen; (ii) require the use of recording thermometers and interval timers on every milk storage tank installed on a permitted Grade A milk dairy farm; (iii) specify the design, fabrication, installation, inspection, and record keeping necessary for the proper use of such thermometers and timers; (iv) establish a definition for small-scale processors of cheese under the dairy plant processing requirements contained in the USDA Recommended Requirements; and (v) create exemptions for small-scale processors of cheese from the USDA Recommended Requirements regarding processing requirements for dairy plants, provided such exemptions do not compromise food safety.

3. Any reference, standard, or part thereof relating to milk, milk products, or milk production published by the American Society of Agricultural Engineers, the American Public Health Association, the American Society of Mechanical Engineers, or the International Association of Food Protection.

4. Any method of analysis relating to milk or milk products including any method of analysis published by the United States Public Health Service, the Association of Official Analytical Chemists, or the American Public Health Association.

C. Any regulation adopted pursuant to this section shall, unless a later effective date is specified in the regulation, be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations. Neither the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) nor public participation guidelines adopted pursuant thereto shall apply to the adoption of any regulation pursuant to this section. Prior to adopting any regulation pursuant to this section, the Board shall publish a notice of opportunity to comment in the Virginia Register of Regulations. The notice of opportunity to comment shall contain: (i) a summary of the proposed regulation; (ii) instructions on how to obtain the complete text of the proposed regulation; and (iii) the name, address, and telephone number of the agency contact person responsible for receiving public comments. The notice of opportunity to comment shall be made at least 90 days in advance of the last date prescribed in the notice for submittals of public comment. The legislative review provisions of § 2.2-4014 shall apply to the promulgation or final adoption process of regulations under this section. The Board shall consider and keep on file all public comments received for any regulation adopted pursuant to this section.

D. Notwithstanding the provisions of subsections B and C, any permits that may be issued or regulations that may be adopted for the sale or manufacture of cheese from milk from any species not required to be permitted or regulated in intrastate commerce prior to July 1, 2001, under this article, shall be in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) if such regulations or permits apply to persons who manufacture less than 1,000 pounds of such cheese annually.

Code 1950, § 3-345; 1966, c. 702, § 3.1-424; 1970, c. 49, § 3.1-530.1; 2001, c. 523; 2008, c. 860.

§ 3.2-5207. Powers and duties of Commissioner; obstruction unlawful.

The Commissioner shall administer and enforce the regulations adopted pursuant to § 3.2-5206 except as provided in § 3.2-5208. 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. It shall be unlawful for any person to hinder, obstruct, or interfere with the Commissioner in the performance of his duties under this article or under the regulations adopted pursuant to this article.

1970, c. 49, § 3.1-530.3; 2008, c. 860.

§ 3.2-5208. Powers and duties of State Health Commissioner; obstruction unlawful.

The State Health Commissioner, pursuant to the regulations adopted pursuant to § 3.2-5206, shall issue permits to all plants that process and distribute Grade A market milk and Grade A market milk products. The State Health Commissioner shall also enforce the regulations adopted under § 3.2-5206 in all plants from the point of delivery at the plant to the consumer. 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, pertaining to the processing and distribution of Grade A market milk, Grade A market milk products, ungraded milk products, and those products manufactured in semblance to or as substitutes in Grade A market milk and Grade A market milk products plants from the point of delivery at the plant to the consumer. It shall be unlawful for any person to hinder, obstruct, or interfere with the State Health Commissioner in the performance of his duties under this article or under the regulations adopted hereunder.

1970, c. 49, § 3.1-530.4; 2008, c. 860.

§ 3.2-5209. Penalties.

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 and shall be punished as such.

1970, c. 49, § 3.1-530.9; 2008, c. 860.

§ 3.2-5210. Civil penalties.

A. In addition to the penalties prescribed in § 3.2-5209, any person violating any provision of this article or regulation adopted hereunder may be assessed a civil penalty by the Commissioner for each violation in an amount not to exceed $1,000. Any civil penalty may be in lieu of suspension of a permit issued pursuant to § 3.2-5206. In determining the amount of any civil penalty, the Commissioner shall give due consideration to: (i) the previous violations committed by the person; (ii) the seriousness of the violation; and (iii) the demonstrated good faith of the person charged in attempting to achieve compliance with this article or regulation adopted hereunder after notification of the violation. Any civil penalty shall be in addition to any payment that may be required for the wholesale value of all milk and milk products that must be destroyed as a consequence of such violation.

B. A civil penalty may be assessed by the Commissioner only after the Commissioner has given the person charged with a violation an opportunity for a public hearing. Where such a public hearing has been held, the Commissioner shall make findings of fact and issue a written decision as to the occurrence of the violation and the amount of the penalty that is warranted, incorporating, when appropriate, an order requiring that the penalty be paid. When appropriate, the Commissioner shall consolidate such hearings with other proceedings pursuant to the provisions of this chapter. Any hearing under this section shall be a formal adjudicatory hearing in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). When the person charged with such a violation fails to avail himself of the opportunity for a public hearing, a civil penalty shall be assessed by the Commissioner after the Commissioner determines that a violation has occurred and the amount of the penalty warranted, and issues an order requiring that the penalty be paid.

C. Civil penalties assessed under this section shall be paid into the general fund of the state treasury. The Board shall prescribe procedures for payment of civil penalties. The procedures shall include provisions for a person to consent to abatement of the alleged violation and pay a penalty or negotiated sum in lieu of such penalty without admission of civil liability arising from such alleged violation.

D. Final orders may be recorded, enforced and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner. Such orders may be appealed in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

E. Nothing in this section shall require the Commissioner to institute proceedings for the imposition of civil penalties if the Commissioner considers the violations of this article to be minor. In such cases, the Commissioner may serve a suitable notice of warning in writing when he believes that the public interest will be served by so doing.

F. The penalty provisions of this section shall not apply to violations of this article or any regulation adopted hereunder with respect to excessive drug residue. The penalty for any such violation shall be as provided in § 3.2-5211.

2000, c. 993, § 3.1-530.10; 2001, c. 523; 2008, c. 860.

§ 3.2-5211. Excessive drug residue; penalty.

A. For the purposes of this section:

"Dairy farm" means any farm producing Grade A milk or milk for manufacturing purposes.

"Excessive drug residue" means drug residue that is: (i) greater than the value specified as a safe level by the U.S. Food and Drug Administration; (ii) equal to or greater than the value specified as the minimum actionable level by the U.S. Food and Drug Administration; or (iii) greater than the value specified as the maximum tolerance level established by federal law. In the event that no safe level, actionable level, or tolerance level for drug residue has been established under federal law, any drug residue shall be deemed to exceed the safe level, minimum actionable level, or tolerance level of drug residue.

"Official drug test" means a test: (i) performed by a laboratory that is certified by the Interstate Milk Shippers (IMS) and listed as certified in the IMS List Sanitation Compliance and Enforcement Ratings of Interstate Milk Shippers published by the U.S. Food and Drug Administration; (ii) performed in a laboratory operated by the Commonwealth; or (iii) performed using a method that has been reviewed and accepted by the United States Public Health Service, the Association of Official Analytical Chemists, or the American Public Health Association.

B. Where an official drug test detects the presence of excessive drug residue in milk produced at a dairy farm, the Commissioner may: (i) assess a civil penalty not to exceed $100 against the operator of the dairy farm; or (ii) order the suspension of any permit issued to the operator pursuant to § 3.2-5206. No civil penalty shall be assessed under this section unless the operator of the dairy farm has been given the opportunity for an informal fact-finding conference pursuant to § 2.2-4019. If the matter is not resolved by the informal fact-finding conference or the operator of the dairy farm is dissatisfied with the Commissioner's decision from the informal fact-finding conference, the operator may request a second informal fact-finding conference. Any such request shall be submitted by the operator to the Commissioner within 30 days after the operator's receipt of the decision. The Commissioner in his discretion may grant or deny such request.

Nothing in this section shall be construed to require the Commissioner to hold a formal hearing pursuant to § 2.2-4020 prior to the assessment of a civil penalty or the suspension of a permit pursuant to this section.

C. If the Commissioner assesses a civil penalty pursuant to this section and the operator of the dairy farm fails to pay the civil penalty in a timely manner, the Commissioner shall suspend any permit issued pursuant to § 3.2-5206 to the operator.

D. Civil penalties assessed under this section shall be paid into the general fund of the state treasury. The Board shall prescribe procedures for payment of civil penalties. The procedures shall include provisions for a person to consent to abatement of the alleged violation and pay a penalty or negotiated sum in lieu of such penalty without admission of civil liability arising from such alleged violation.

2001, c. 523, § 3.1-530.11; 2008, c. 860.

Article 3. Ice Cream and Similar Products.

§ 3.2-5212. Authority of Board to establish standards, adopt regulations.

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.

§ 3.2-5213. Commissioner to enforce article; right of entry.

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.

§ 3.2-5214. Permits; delegation of enforcement of article to State Health Commissioner for restaurants.

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.

§ 3.2-5215. Detention of adulterated, misbranded products.

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.

§ 3.2-5216. Condemnation of adulterated, misbranded products.

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.

§ 3.2-5217. Penalties.

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.

Article 4. Babcock and Other Machine Tests.

§ 3.2-5218. Definitions.

As used in this article, unless the context requires a different meaning:

"Holder" means a corporation, association, partnership or two or more persons having a joint or common interest.

Code 1950, § 3-415; 1966, c. 702, § 3.1-545; 2008, c. 860.

§ 3.2-5219. No test or apparatus other than Babcock or other centrifugal machines to be used unless approved by Board.

No test or apparatus shall be used for the purpose of determining the composition of milk or cream as a basis for payment in buying or selling milk or cream or dairy products other than the Babcock or other centrifugal machines unless such other test or apparatus has been approved for such use by regulation of the Board. In the event that the Board approves such other test or apparatus for such use, then the provisions of this article shall apply, mutatis mutandis, to such approved test or apparatus.

1970, c. 176, § 3.1-531.1; 2008, c. 860.

§ 3.2-5220. Inspection of centrifugal machines and scales; condemnation.

Every Babcock or other centrifugal machine, or cream test or butterfat test scale, used in the Commonwealth by any inspector of milk or cream or by any person in any milk inspection laboratory for determining the composition of milk or cream for purposes of inspection, or by any person in any milk depot, ice cream factory, confectionery, creamery, cheese factory, condensed milk factory, laboratory, or other place for determining the composition or value of milk or cream as a basis for payment in buying or selling, shall be subject to inspection at least once in each year by the Commissioner. The Commissioner may condemn any Babcock or other centrifugal scale that is, in his opinion, not giving accurate results. No Babcock or other centrifugal machine or scale that has been condemned by the Commissioner shall be used in the Commonwealth by any person for determining the composition or value of milk or cream, unless the machine or scale has been changed and approved by the Commissioner.

Code 1950, § 3-402; 1966, c. 702, § 3.1-532; 2008, c. 860.

§ 3.2-5221. Manipulators of machines to procure certificates; renewal of certificate; revocation by Commissioner.

No inspector of milk or cream, and no person in any milk inspection laboratory, shall manipulate the Babcock or other centrifugal machine for the purpose of determining the composition of milk or cream for purposes of inspection without first obtaining a certificate from the Commissioner that he is competent to perform such work. No person in any milk depot, ice cream factory, confectionery, creamery, cheese factory, condensed milk factory, or other place in the Commonwealth shall manipulate the Babcock or other centrifugal machine for the purpose of determining the composition or value of milk or cream, or shall take samples or weigh milk or cream, as a basis for payment in buying or selling, without first obtaining a certificate from the Commissioner that he is competent to perform such work. All such certificates shall be renewed annually without further examination at the discretion of the Commissioner upon application. Unless a person holding a valid tester's, weigher's, and sampler's certificate renews his certificate within one year after its expiration date, he shall be required to pass the applicable examination before a new certificate shall be issued. If any holder of a certificate is notified by the Commissioner to correct his use of a Babcock or other centrifugal machine, or his method of sampling or weighing, and the person or holder of a certificate notified fails to comply with the notice and correct his use of a Babcock or other centrifugal machine, or his methods of sampling or weighing, he shall be deemed guilty of a violation of the provisions of this article, and the Commissioner may forfeit his certificate or assess a civil penalty as provided in § 3.2-5233. No holder of a certificate whose authority to manipulate a Babcock or other centrifugal machine or to sample or weigh milk or cream has been revoked by the Commissioner shall thereafter manipulate in the Commonwealth any centrifugal machine or sample or weigh milk or cream for the purposes herein specified until his certificate has been renewed.

Code 1950, § 3-403; 1966, c. 702, § 3.1-533; 1996, c. 723; 2000, c. 993; 2008, c. 860.

§ 3.2-5222. To whom certificates issued.

The Commissioner is authorized to issue certificates of competency to persons desiring to manipulate the Babcock or other centrifugal machine or to sample or weigh milk or cream who may present certificates of competency properly filled out and signed by the professor of dairy science or other authorized officer of the Virginia Polytechnic Institute and State University, and to other persons as, in the opinion of the Commissioner, are competent to manipulate the machines, and to sample or weigh milk or cream.

Code 1950, § 3-404; 1966, c. 702, § 3.1-534; 2008, c. 860.

§ 3.2-5223. Regulations governing applications for certificates; revocation by Board; standards and regulations.

The Board is authorized to adopt and enforce regulations governing applications for certificates and the granting of certificates. The Board may, in its discretion, revoke the authority of any holder of a certificate who, in its opinion, is not correctly manipulating any Babcock or other centrifugal machine, or correctly sampling or weighing milk or cream or is using dirty or otherwise unsatisfactory glassware or utensils. The Board is authorized to fix such standards and to adopt such regulations as may be deemed necessary to carry out the provisions of this article.

Code 1950, § 3-405; 1966, c. 702, § 3.1-535; 2008, c. 860.

§ 3.2-5224. Regulations governing equipment, standards and procedures.

The Board shall have authority to adopt and enforce regulations governing the equipment, standards, and procedures used in the receiving, weighing, measuring, sampling, and testing of milk or other fluid dairy products when the results are to be used for the purpose of inspection, check testing, or as a basis for payment in buying or selling.

1970, c. 176, § 3.1-535.1; 2008, c. 860.

§ 3.2-5225. Capacity of standard measurers.

In the use of the Babcock or any other centrifugal machine, the standard milk measurer or pipettes shall have a capacity of 17.6 cubic centimeters and the standard test tubes or bottles for milk shall have a capacity of two cubic centimeters for each 10 percent marked on the necks.

Code 1950, § 3-406; 1966, c. 702, § 3.1-536; 2008, c. 860.

§ 3.2-5226. Units for testing cream.

Cream shall be tested by weight and the standard units for testing shall be 18 grams, and nine grams. It is a violation of the provisions of this article to use any other standard of milk or cream measure where milk or cream is purchased by or furnished to creameries or cheese factories, and where the value of the milk or cream is determined by the percent of butterfat contained by the Babcock or other centrifugal test or cream test or butterfat test scales.

Code 1950, § 3-407; 1966, c. 702, § 3.1-537; 2008, c. 860.

§ 3.2-5227. Sampling to determine butterfat by composite tests.

In sampling milk or cream for composite tests to determine the percent of butterfat contained, no such sample or sampling shall be lawful unless a sample is taken from each weighing, and the quantity used shall be proportioned to the total weight of the milk or cream tested.

Code 1950, § 3-408; 1966, c. 702, § 3.1-538; 2008, c. 860.

§ 3.2-5228. Test of measurers; inspection of machines and scales; right of entry.

The Commissioner shall inspect or cause to be inspected at least once each year every Babcock or other centrifugal machine or cream test or butterfat test scales used in the Commonwealth by an inspector of milk or cream or by any person in any milk inspection laboratory for purposes of inspection, or by any person in any milk depot, ice cream factory, confectionery, creamery, cheese factory, condensed milk factory, or other place for determining the composition or value of milk or cream as a basis for payment in buying or selling. The Commissioner is further authorized to enter upon any premises in the Commonwealth where any centrifugal machine or cream test and butterfat test scales are used to inspect the devices and to ascertain if the provisions of law are complied with.

Code 1950, § 3-409; 1966, c. 702, § 3.1-539; 1996, c. 723; 2008, c. 860.

§ 3.2-5229. False manipulation and reading of tests.

Any person who shall, by himself or as the officer, servant, agent, or employee of any person falsely manipulate, underread, or overread the Babcock test or any other apparatus used for the purpose of determining the amount of milk fat in milk or cream, or who shall make any false determination of any test or apparatus used for the purpose of determining the amount of milk fat in any dairy products, is guilty of a Class 1 misdemeanor.

Code 1950, § 3-410; 1966, c. 702, § 3.1-540; 2008, c. 860.

§ 3.2-5230. Tender of payment as evidence of test.

The tender of payment for milk or cream at any given test, shall constitute prima facie evidence that such test was made.

Code 1950, § 3-411; 1966, c. 702, § 3.1-541; 2008, c. 860.

§ 3.2-5231. Commissioner to enforce article; persons exempt.

It shall be the duty of the Commissioner to see that the provisions of this article are complied with, and he may in his discretion prosecute any person violating any of its provisions. But the provisions of this article shall not be construed to affect a person using any centrifugal or other machine or test in determining the composition or value of milk or cream when such determination is made for the information of that person only and not for purposes of inspection, or as a basis for payment in buying or selling.

Code 1950, § 3-412; 1966, c. 702, § 3.1-542; 2008, c. 860.

§ 3.2-5232. Obstructing Commissioner; violations of article.

Any person who shall hinder or obstruct the Commissioner in the discharge of the authority or duty imposed upon him by this article, and any person violating any of its provisions is guilty of a Class 2 misdemeanor.

Code 1950, § 3-414; 1966, c. 702, § 3.1-544; 2008, c. 860.

§ 3.2-5233. Civil penalties.

A. In addition to the penalties prescribed in § 3.2-5229 or 3.2-5232, any person violating any provision of this article or regulation adopted hereunder may be assessed a civil penalty by the Commissioner for each violation in an amount not to exceed $15,000. In determining the amount of any civil penalty, the Commissioner shall give due consideration to: (i) the previous violations committed by the person; (ii) the seriousness of the violation; and (iii) the demonstrated good faith of the person charged in attempting to achieve compliance with this article or the regulations adopted hereunder after notification of the violation. Any civil penalty shall be in addition to any payment that may be required for the wholesale value of all milk and milk products that must be destroyed as a consequence of such violation.

B. A civil penalty may be assessed by the Commissioner only after he has given the person charged with a violation an opportunity for a public hearing. Where such a public hearing has been held, the Commissioner shall make findings of fact and issue a written decision as to the occurrence of the violation and the amount of the penalty that is warranted, incorporating, when appropriate, an order therein requiring that the penalty be paid. When appropriate, the Commissioner shall consolidate such hearings with other proceedings pursuant to the provisions of this chapter. Any hearing under this section shall be a formal adjudicatory hearing in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). When the person charged with such a violation fails to avail himself of the opportunity for a public hearing, a civil penalty shall be assessed by the Commissioner after the Commissioner determines that a violation has occurred and the amount of the penalty warranted, and issues an order requiring that the penalty be paid.

C. Civil penalties assessed under this section shall be paid into the general fund of the state treasury. The Board shall prescribe procedures for payment of civil penalties. The procedures shall include provisions for a person to consent to abatement of the alleged violation and pay a penalty or negotiated sum in lieu of such penalty without admission of civil liability arising from such alleged violation.

D. Final orders may be recorded, enforced and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner. Such orders may be appealed in accordance with provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

E. Nothing in this section shall require the Commissioner to institute proceedings for the imposition of civil penalties if the Commissioner considers the violations of this article to be minor. In such cases, the Commissioner may serve a suitable notice of warning in writing when he believes that the public interest will be served by so doing.

2000, c. 993, § 3.1-545.1; 2008, c. 860.

Chapter 53. Eggs and Hatchery Products.

§ 3.2-5300. Application of chapter.

This chapter shall apply to the marketing of eggs to consumers, institutional consumers, and retailers.

1968, c. 142, § 3.1-763.14; 2008, c. 860.

§ 3.2-5301. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Consumer" means any person who acquires eggs for consumption in his own household and not for resale.

"Eggs" mean eggs in the shell that are the product of domesticated chickens.

"Grade" means specifications defining the limits of variation in quality of eggs in such a manner as to differentiate among classes of eggs, and the letter, number, or other symbol by which references may be made.

"Institutional consumer" means a restaurant, hotel, boardinghouse, or any other business, facility, or place in which eggs are prepared or offered as food to patrons, residents, inmates, or patients.

"Market" means sell, offer for sale, give in the channels of commerce, barter, exchange, or distribute in any manner.

"Processor" includes any person who cleans, candles, grades, sizes, and packs shell eggs for human consumption.

"Retailer" means any person who markets eggs to consumers.

"Standard" means specifications of the physical characteristics or any or all of the component parts of individual eggs.

1968, c. 142, § 3.1-763.15; 1972, c. 120; 2008, c. 860.

§ 3.2-5302. Standards, grades, and size-weight classes; cracked or checked eggs; sale of inedible eggs.

A. The Board shall adopt standards, grades, and size-weight classes including standards for the term "ungraded" for eggs marketed in the Commonwealth. In administering this chapter, the Department shall have due regard for the desirability of uniformity in the standards, grades, and size-weight classes for eggs moving in intrastate and interstate commerce.

B. Cracked or checked eggs labeled as "cracks" may be sold only by producers or processors directly to consumers or for further processing, excluding institutional consumers.

C. The sale or offering for sale of inedible eggs as defined in the grades adopted by the Commissioner is prohibited except that incubated eggs may be sold for commercial purposes other than for human consumption provided such incubated eggs are marked, packaged, and disposed of in a manner approved by the Commissioner.

Code 1950, § 3-602; 1952, c. 308; 1956, c. 284; 1966, c. 702, § 3.1-767; 1968, c. 142, § 3.1-763.16; 2008, c. 860.

§ 3.2-5303. Requirements for eggs sold as fresh or with similar description.

The term "fresh eggs," or any legend, symbol, picture, representation or device declaring or tending to convey the impression that the eggs are fresh may be applied only to eggs meeting the requirements of grade A quality or better as established by the Board for fresh eggs.

Code 1950, § 3-599; 1966, c. 702, § 3.1-764; 1968, c. 142; 2008, c. 860.

§ 3.2-5304. Labeling and advertising.

No label, container, display, or advertisement of eggs shall contain incorrect, fraudulent, or misleading representations. No person shall advertise eggs for sale unless the unabbreviated grade and size-weight class, quality, or other required terms are conspicuously designated in letters at least half as high as the tallest letter in the word "eggs" or the tallest figure in the price, whichever is larger.

1968, c. 142, § 3.1-763.17; 2008, c. 860.

§ 3.2-5305. Certain producers exempt from law.

Producers selling a total of 150 dozen eggs or less per week produced by their own hens, or eggs purchased from other producers not to exceed 60 dozen per week are exempt from this law provided all eggs are of edible quality and of the quality as represented.

Code 1950, § 3-600; 1956, c. 284; 1966, c. 702, § 3.1-765; 1968, c. 142; 2008, c. 860.

§ 3.2-5306. Enforcement of chapter; how eggs marked and quality determined; requirements.

A. This chapter shall be enforced by the Commissioner and all eggs sold or offered for sale except those exempted in § 3.2-5305 shall be marked according to the grades, sizes, quality, ungraded or cracked and other required terms adopted by the Commissioner with the approval of the Board and shall conform to the standards established for the grade, size, ungraded or cracked as labeled. Official determination of the quality of all eggs outlined in this chapter shall be by candling.

B. Eggs moving into private or cooperative packing plants, which are first receivers, where they will be candled and graded, need not be marked.

Code 1950, §§ 3-601, 3-603; 1952, c. 308; 1956, c. 284; 1966, c. 702, §§ 3.1-766, 3.1-768; 1968, c. 142; 2008, c. 860.

§ 3.2-5307. Seller invoice; requirements.

Any person selling or delivering eggs to restaurants, hotels, retail stores, bakeries or other institution purchasing eggs for serving to guests, patrons, employees or inmates shall furnish the purchaser with an invoice showing the name and address of the seller and the quantity, grade, and size of such eggs. If the eggs are ungraded, such fact shall appear on the invoice. A copy of such invoice shall be retained by the seller and purchaser for not less than 30 days.

Code 1950, § 3-603.1; 1956, c. 284; 1966, c. 702, § 3.1-769; 1968, c. 142; 2008, c. 860.

§ 3.2-5308. Sanitation and related matters.

A. Any person assembling, transporting, processing, holding, or offering for sale eggs destined for a consumer or an institutional consumer shall provide and maintain a satisfactory relative humidity. In addition, any container, including the packaging material therein or associated therewith, shall be clean and free from foreign odor.

B. The Board shall by regulations, provide for the keeping, processing, transporting, and the sale of eggs under sanitary conditions.

C. Nothing in this chapter or in any regulations of the Board shall be construed to exempt any persons or premises from the application of any laws otherwise applicable and relating to the operation of establishments or facilities for the storing, transporting, sale, distribution, preparation, or serving of food.

1968, c. 142, § 3.1-769.1; 2008, c. 860.

§ 3.2-5309. Stop-sale order and seizure.

A. If after inspection, the Department determines that any eggs are being offered, displayed, stored, processed, or transported in violation of this chapter, the Department may issue a stop-sale order as to such eggs directed to the owner or custodian thereof. Such order shall specify the reason for its issuance and shall detail the character of the violation. No eggs to which a stop-sale order applies shall be marketed until and unless the order has been withdrawn. The Department shall withdraw a stop-sale order only upon its determination that the conditions leading to the issuance of the order have been corrected.

B. Whenever the public interest requires, the Department may take possession or custody of the eggs against which a stop-sale order has been issued and may commence proceedings for the seizure thereof. Upon seizure and proof of violation, the eggs shall be disposed of in such manner as may be consistent with the public safety and interest. The owner or custodian of the eggs shall not be entitled to any compensation or damages on account of such seizure or disposition.

1968, c. 142, § 3.1-769.2; 2008, c. 860.

§ 3.2-5310. Right of entry.

The Commissioner may enter during normal business hours on or into any premises or any vehicle wherein eggs are bought, stored, sold, offered for sale, processed, or transported, or wherein the Commissioner has reason to believe that any such activity is carried on, in order to inspect and examine eggs, egg containers, any equipment, facilities or records pertinent to the conduct of activities subject to this chapter or regulations implementing the same, or to ascertain the state of compliance with any order issued by the Department pursuant to this chapter.

1968, c. 142, § 3.1-769.3; 2008, c. 860.

§ 3.2-5311. Adopting regulations.

The Board may adopt regulations to administer this chapter.

1968, c. 142, § 3.1-769.4; 2008, c. 860.

§ 3.2-5312. Violation a misdemeanor.

Any person that violates any provision of this chapter is guilty of a Class 1 misdemeanor.

Code 1950, § 3-604; 1952, c. 308; 1966, c. 702, § 3.1-770; 2008, c. 860.

§ 3.2-5313. Injunction.

The Department acting by the Attorney General or local prosecutor may enforce any provision of this chapter or any regulation issued pursuant thereto by injunction.

1968, c. 142, § 3.1-770.1; 2008, c. 860.

§ 3.2-5314. Remedies not exclusive.

The institution of proceedings for the application of any remedy, or the issuance of any order on account thereof, or the imposition of any fine or penalty pursuant to this chapter shall not operate as a bar or limitation to the application of any other remedy available pursuant to this chapter or any other applicable law.

1968, c. 142, § 3.1-770.2; 2008, c. 860.

§ 3.2-5315. Judicial review.

Any determination of final actions of the Department taken pursuant to this chapter shall be reviewable in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1968, c. 142, § 3.1-770.3; 1986, c. 615; 2008, c. 860.

Chapter 54. Slaughterhouses, Meat, and Dressed Poultry.

Article 1. General Provisions.

§ 3.2-5400. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Animal food manufacturer" means any person engaged in the business of preparing animal (including poultry) food derived wholly or in part from livestock or poultry carcasses or parts or products of such carcasses.

"Broker" means any person engaged in the business of buying or selling livestock products or poultry products on commission, or otherwise negotiating purchases or sales of such articles other than for his own account or as an employee of another person.

"Capable of use as human food" shall apply to any livestock or poultry carcass, or part or product of any such carcass, unless it is denatured or otherwise identified as required by regulations prescribed by the Board to deter its use as human food, or it is naturally inedible by humans.

"Container" or "package" means any box, can, tin, cloth, plastic, or other receptacle, wrapper, or cover.

"Federal Food, Drug, and Cosmetic Act" means the act so entitled, approved June 25, 1938 (52 Stat. 1040), and acts amendatory thereof or supplementary thereto.

"Federal Meat Inspection Act" means the act so entitled approved March 4, 1907 (34 Stat. 1260), as amended by the Wholesale Meat Act (81 Stat. 584); the term "Federal Poultry Products Inspection Act" means the act so entitled approved August 28, 1957 (71 Stat. 441), as amended by the Wholesale Poultry Products Act (82 Stat. 791); and the term "federal acts" means these two federal laws.

"Immediate container" means any consumer package; or any other container in which livestock products or poultry products, not consumer packaged, are packed.

"Inspector" means an employee or official of the Commonwealth authorized by the Commissioner or any employee or official of the government of any locality authorized by the Commissioner to perform any inspection functions under this article under an agreement between the Commissioner and such governmental subdivision.

"Label" means a display of written, printed, or graphic matter upon any article or the immediate container (not including package liners) of any article.

"Labeling" means all labels and other written, printed, or graphic matter: (i) upon any article or any of its containers or wrappers; or (ii) accompanying such article.

"Livestock" means any cattle, sheep, swine, goats, horses, mules, or other equines, whether live or dead.

"Livestock product" means any carcass, part thereof, meat, or meat food product of any livestock.

"Meat food product" means any product capable of use as human food that is made wholly or in part from any meat or other portion of the carcass of any cattle, sheep, swine, or goats. Products that contain meat or other portions of such carcasses only in a relatively small proportion or historically have not been considered by consumers as products of the meat food industry, and that are exempted from definition as a meat food product by the Commissioner under such conditions as he may prescribe to assure that the meat or other portions of such carcass contained in such product are not adulterated and that such products are not represented as meat food products. This term as applied to food products of equines shall have a comparable meaning.

"Official certificate" means any certificate prescribed by regulations of the Board for issuance by an inspector or other person performing official functions under this article.

"Official device" means any device prescribed or authorized by the Commissioner for use in applying any official mark.

"Official establishment" means any establishment as determined by the Commissioner at which inspection of the slaughter of livestock or poultry or the preparation of livestock products or poultry products is maintained under the authority of this article.

"Official inspection legend" means any symbol prescribed by regulations of the Board showing that an article was inspected and passed in accordance with this article.

"Official mark" means the official inspection legend or any other symbol prescribed by regulations of the Board to identify the status of any article or livestock or poultry under this article.

"Pesticide chemical," "food additive," "color additive," and "raw agricultural commodity" shall have the same meanings for purposes of this article as under the Federal Food, Drug, and Cosmetic Act.

"Poultry" means any domesticated bird, whether live or dead.

"Poultry product" means any poultry carcass or part thereof; or any product that is made wholly or in part from any poultry carcass or part thereof, excepting products that contain poultry ingredients only in a relatively small proportion or historically have not been considered by consumers as products of the poultry food industry, and that are exempted by the Commissioner from definition as a poultry product under such conditions as he may prescribe to assure that the poultry ingredients in such products are not adulterated and that such products are not represented as poultry products.

"Prepared" means slaughtered, canned, salted, stuffed, rendered, boned, cut up, or otherwise manufactured or processed.

"Render" means any person engaged in the business of rendering livestock or poultry carcasses, or parts of products of such carcasses, except rendering conducted under inspection or exemption under this article.

"Shipping container" means any container used or intended for use in packaging the product packed in an immediate container.

1970, c. 290, § 3.1-884.18; 2008, c. 860.

§ 3.2-5401. Adulterated livestock product or poultry product.

Any livestock product or poultry product shall be deemed to be adulterated:

1. If it bears or contains any poisonous or deleterious substance that may render it injurious to health; but in case the substance is not an added substance, such article shall not be considered adulterated under this clause if the quantity of such substance in or on such article does not ordinarily render it injurious to health;

2. If it bears or contains (by reason of administration of any substance to the livestock or poultry or otherwise) any added poisonous or added deleterious substance (other than one that is: (i) a pesticide chemical in or on a raw agricultural commodity; (ii) a food additive; or (iii) a color additive) that may, in the judgment of the Commissioner, make such article unfit for human food;

3. If it is, in whole or in part, a raw agricultural commodity and such commodity bears or contains a pesticide chemical that is unsafe within the meaning of § 408 of the Federal Food, Drug, and Cosmetic Act;

4. If it bears or contains any food additive that is unsafe within the meaning of § 409 of the Federal Food, Drug, and Cosmetic Act;

5. If it bears or contains any color additive that is unsafe within the meaning of § 706 of the Federal Food, Drug, and Cosmetic Act; provided, that an article that is not otherwise deemed adulterated under subsection C or D of this section shall nevertheless be deemed adulterated if use of the pesticide chemical, food additive, or color additive in or on such article is prohibited by regulations of the Board in official establishments;

6. If it consists in whole or in part of any filthy, putrid, or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food;

7. If it has been prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health;

8. If it is, in whole or in part, the product of an animal (including poultry) that has died otherwise than by slaughter;

9. If its container is composed, in whole or in part, of any poisonous or deleterious substance that may render the contents injurious to health;

10. If it has been intentionally subjected to radiation, unless the use of the radiation was in conformity with a regulation or exemption in effect pursuant to § 409 of the Federal Food, Drug, and Cosmetic Act;

11. If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or if any substance has been substituted, wholly or in part therefor; or if damage or inferiority has been concealed in any manner; or if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is; or

12. If it is margarine containing animal fat and any of the raw material used therein consisted in whole or in part of any filthy, putrid, or decomposed substance.

1970, c. 290, § 3.1-884.18; 2008, c. 860.

§ 3.2-5402. Misbranded livestock product or poultry product.

Any livestock product or poultry product shall be deemed to be misbranded:

1. If its labeling is false or misleading in any particular;

2. If it is offered for sale under the name of another food;

3. If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word "imitation" and immediately thereafter, the name of the food imitated;

4. If its container is so made, formed, or filled as to be misleading;

5. Unless it bears a label showing: (i) the name and place of business of the manufacturer, packer, or distributor; and (ii) an accurate statement of the quantity of the product in terms of weight, measure, or numerical count; provided, that under this subsection, exemptions as to livestock products not in containers may be established by regulations prescribed by the Board; and provided, further, that under clause (ii) of this subsection, reasonable variations may be permitted, and exemptions as to small packages may be established for livestock products or poultry products by regulations prescribed by the Board;

6. If any word, statement, or other information required by or under authority of this chapter to appear on the label or other labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;

7. If it purports to be or is represented as a food for which a definition and standard of identity or composition has been prescribed by the regulations of the Board under § 3.2-5404 unless: (i) it conforms to such definition and standard; and (ii) its label bears the name of the food specified in the definition and standard and, insofar as may be required by such regulations, the common names of optional ingredients (other than spices, flavoring, and coloring) present in such food;

8. If it purports to be or is represented as a food for which a standard or standards of fill of container have been prescribed by regulations of the Board under § 3.2-5404 and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard;

9. If it is not subject to the provisions of subdivision 7, unless its label bears: (i) the common or usual name of the food, if any there be; and (ii) in case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings, and colorings may, when authorized by the Commissioner, be designated as spices, flavorings, and colorings without naming each; provided that, to the extent that compliance with the requirements of clause (ii) of this subsection is impracticable, or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the Board;

10. If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the Commissioner, after consultation with the U.S. Department of Agriculture, determines to be, and prescribes as, necessary in order fully to inform purchasers as to its value for such uses;

11. If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; provided that, to the extent that compliance with the requirements of this subsection is impracticable, exemptions shall be established by regulations adopted by the Board; or

12. If it fails to bear, directly thereon and on its containers, as the Board may by regulations prescribe, the official inspection legend and establishment number of the establishment where the product was prepared and, unrestricted by any of the foregoing, such other information as the Board may require in such regulations to assure that it will not have false or misleading labeling and that the public will be informed of the manner of handling required to maintain the article in a wholesome condition.

1970, c. 290, § 3.1-884.18; 2008, c. 860.

§ 3.2-5403. Department to cooperate with U.S. Department of Agriculture.

The Department shall cooperate with the U.S. Department of Agriculture in administration of this chapter to provide for meat and poultry products inspection programs. These programs will impose and enforce requirements with respect to intrastate operations and commerce that are at least equal to those imposed and enforced under the Federal Meat Inspection Act and the Federal Poultry Products Inspection Act with respect to operations and transactions in interstate commerce; and the Commissioner is directed to administer this chapter so as to accomplish this purpose.

1970, c. 290, § 3.1-884.19; 2008, c. 860.

§ 3.2-5404. Duties of the Board.

In order to accomplish the objective stated in § 3.2-5403, the Board:

1. Shall, by regulations, require antemortem and postmortem inspections, quarantine, segregation and reinspections with respect to the slaughter of livestock and poultry and the preparation of livestock products and poultry products at all establishments in the Commonwealth, except those exempted by the Commissioner pursuant to subdivision 9 of § 3.2-5405, at which livestock or poultry are slaughtered or livestock products or poultry products are prepared for human food solely for distribution in intrastate commerce;

2. Shall, by regulations, require the identification of livestock and poultry for inspection purposes and the marking and labeling of livestock products or poultry products or their containers, or both, as "Virginia Inspected and Passed" if the products are found upon inspection to be not adulterated and as "Virginia Inspected and Condemned" if they are found upon inspection to be adulterated, and the destruction for food purposes of all such condemned products under the supervision of an inspector;

3. Shall prohibit the entry into official establishments of livestock products and poultry products not prepared under federal inspection or inspection pursuant to this article and further limit the entry of such articles and other materials into such establishments under such conditions as it deems necessary to effectuate the purposes of this article;

4. Shall, by regulations, require that when livestock products and poultry products leave official establishments they shall bear directly thereon or on their containers, or both, as it may require, all information required under § 3.2-5402; and require approval of all labeling and containers to be used for such products when sold or transported in intrastate commerce to assure that they comply with the requirements of this article;

5. Shall require the investigation of the sanitary conditions of each establishment within subdivision 1 of this section and require the Commissioner to withdraw or otherwise refuse to provide inspection service at any such establishment where the sanitary conditions are such as to render adulterated any livestock products or poultry products prepared or handled thereat;

6. Shall prescribe regulations relating to sanitation for all establishments required to have inspection under subdivision 1 of this section;

7. Shall, by regulations, require that the following classes of persons shall keep such records and for such periods as are specified in the regulations to fully and correctly disclose all transactions involved in their business, and afford to the Commissioner access to such places of business, an opportunity, at all reasonable times, to examine the facilities, inventory and records thereof, to copy the records, and to take reasonable samples of the inventory upon payment of the fair market value therefor: any persons that engage in or for intrastate commerce: (i) in the business of slaughtering any livestock or poultry, or preparing, freezing, packaging or labeling, buying or selling (as brokers, wholesalers or otherwise), transporting, or storing any livestock products or poultry products for human or animal food; or (ii) in business as renderers or in the business of buying, selling or transporting any dead, dying, disabled or diseased livestock or poultry, or parts of the carcasses of any such animals (including poultry) that died otherwise than by slaughter;

8. Shall, by regulations, prescribe the size and style of type to be used for labeling information required under this article, and definitions and standards of identity or composition or standards of fill of container, consistent with federal standards, when it deems such action appropriate for the protection of the public;

9. Shall, by regulations, prescribe conditions of storage and handling of livestock products and poultry products by persons engaged in the business of buying, selling, freezing, storing, or transporting such articles in or for intrastate commerce to assure that such articles will not be adulterated or misbranded when delivered to the consumer;

10. Shall, by regulations, require that every person engaged in business in or for intrastate commerce as a broker, renderer, animal food manufacturer, or wholesaler or public warehouseman of livestock products or poultry products, or engaged in the business of buying, selling or transporting in intrastate commerce, any dead, dying, disabled or diseased livestock or poultry or parts of the carcasses of any such animals (including poultry) that died otherwise than by slaughter shall register with the Commissioner his name and the address of each place of business at which and all trade names under which he conducts such business;

11. May adopt by reference or otherwise such provisions of the rules and regulations under the federal acts (with such changes therein as it deems appropriate to make them applicable to operations and transactions subject to this article) that shall have the same force and effect as if promulgated under this article, and promulgate such other rules and regulations it deems necessary for the efficient execution of the provisions of this article; and

12. Shall promulgate rules of practice providing opportunity for hearing in connection with issuance of orders under subdivision 5 of this section or subdivision A 1, A 2, or A 3 of § 3.2-5405 pending issuance of a final order in any such proceeding.

1970, c. 290, § 3.1-884.20; 1991, c. 344; 2008, c. 860.

§ 3.2-5405. Powers of Commissioner.

A. The Commissioner may:

1. Order removal of inspectors from any establishment that fails to destroy condemned products as required under subdivision 2 of § 3.2-5404;

2. Order cessation of inspection service under this chapter with respect to any establishment for causes specified in § 401 of the Federal Meat Inspection Act or § 18 of the Federal Poultry Products Inspection Act;

3. Order labeling and containers to be withheld from use if he determines that the labeling is false or misleading or the containers are of a misleading size or form;

4. Require that equines be slaughtered and prepared in establishments separate from establishments where other livestock are slaughtered or their products are prepared;

5. Appoint and prescribe the duties of such inspectors and other personnel as he deems necessary for the efficient execution of the provisions of this chapter;

6. Cooperate with the U.S. Department of Agriculture in administration of this chapter to effectuate the purposes stated in § 3.2-5403; accept federal assistance for that purpose and spend public funds of the Commonwealth appropriated for administration of this chapter to pay 50 percent of the estimated total cost of the cooperative program;

7. Recommend to the U.S. Department of Agriculture for appointment to the advisory committees provided for in the federal acts, such officials or employees of the Department as the Commissioner shall designate;

8. Serve as the representative of the Governor for consultation with said Secretary under paragraph (c) of § 301 of the Federal Meat Inspection Act and paragraph (c) of § 5 of the Federal Poultry Products Inspection Act unless the Governor selects another representative; and

9. Exempt the operations of any person from inspection or other requirements of this article if and to the extent such operations would be exempt from the corresponding requirements under the Federal Meat Inspection Act or the Federal Poultry Products Inspection Act if they were conducted in or for interstate commerce or if the Commonwealth was designated under the federal acts as one in which the federal requirements apply to intrastate commerce.

B. Any order issued under subdivisions 1, 2, or 3 of subsection A shall be final unless appealed in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1970, c. 290, §§ 3.1-884.21, 3.1-884.30; 1986, c. 615; 2008, c. 860.

Article 2. Inspection, Slaughter, and Official Marks.

§ 3.2-5406. Meat inspection regulations.

A. The Commissioner may adopt: (i) by reference any regulation under the federal acts as it pertains to this chapter, amending it as necessary for intrastate applicability; and (ii) any regulation containing provisions no less stringent than those contained in federal regulation. Such regulation adopted by the Commissioner shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations.

The regulation shall contain a preamble stating that the Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision of such regulation.

B. The Board, after giving notice in the Virginia Register of Regulations, may reconsider and revise the regulation adopted by the Commissioner. Such revised regulation shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations. Neither the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) nor public participation guidelines adopted pursuant thereto shall apply to the adoption, reconsideration, or revision of any regulation adopted pursuant to this section.

1991, c. 344, § 3.1-884.21:1; 2008, c. 860.

§ 3.2-5407. Prohibitions in general.

A. No person shall, with respect to any livestock or poultry or any livestock products or poultry products:

1. Slaughter any such animals or prepare any such articles that are capable of use as human food, at any establishment preparing such articles solely for intrastate commerce, except in compliance with the requirements of this chapter;

2. Sell, transport, offer for sale or transportation, or receive for transportation, in intrastate commerce, any such articles that: (i) are capable of use as human food, and (ii) are adulterated or misbranded at the time of such sale, transportation, offer for sale or transportation, or receipt for transportation; or any articles required to be inspected under this chapter unless they have been so inspected and passed; or

3. Perform any act, with respect to any articles that are capable of use as human food, while they are being transported in intrastate commerce or held for sale after such transportation, that is intended to cause or has the effect of causing such articles to be adulterated or misbranded.

B. No person shall sell, transport, offer for sale or transportation, or receive for transportation, in intrastate commerce, or from an official establishment, any slaughtered poultry from which the blood, feathers, feet, head, or viscera have not been removed in accordance with regulations promulgated by the Board.

C. No person shall violate any provision of the regulations of the Board under subdivisions 7, 8, 9, or 10 of § 3.2-5404 or orders of the Commissioner under subdivisions A 3 and A 4 of § 3.2-5405.

1970, c. 290, § 3.1-884.22; 2008, c. 860.

§ 3.2-5408. Prohibitions against unauthorized use of any official marks.

A. No brand manufacturer, printer, or other person shall cast, print, lithograph, or otherwise make any device containing any official mark or simulation thereof, or any label bearing any such mark or simulation, or any form of official certificate or simulation thereof, except as authorized by the Commissioner.

B. No person shall:

1. Forge any official device, mark, or certificate;

2. Without authorization from the Commissioner, use any official device, mark, or certificate, or simulation thereof, or alter, detach, deface, or destroy any official device, mark, or certificate;

3. Contrary to the regulations prescribed by the Board, fail to use, or to detach, deface, or destroy any official device, mark, or certificate;

4. Knowingly possess, without promptly notifying the Commissioner any official device or any counterfeit, simulated, forged, or improperly altered official certificate or any device or label or any carcass of any animal (including poultry), or part or product thereof, bearing any counterfeit, simulated, forged, or improperly altered official mark;

5. Knowingly make any false statement in any shipper's certificate or other nonofficial or official certificate provided for in the regulations prescribed by the Board; or

6. Knowingly represent that any article has been inspected and passed, or exempted, under this article when, in fact, it has, respectively, not been so inspected and passed, or exempted.

1970, c. 290, § 3.1-884.23; 2008, c. 860.

§ 3.2-5409. Prohibition against intrastate distribution of equine, livestock and poultry products.

A. No person shall sell, transport, offer for sale or transportation, or receive for transportation, in intrastate commerce, any carcasses of horses, mules, or other equines or parts of such carcasses, or the meat or meat food products thereof, unless they are plainly and conspicuously marked or labeled or otherwise identified as required by regulations prescribed by the Board to show the kinds of animals from which they were derived.

B. No person shall buy, sell, transport, or offer for sale or transportation, or receive for transportation, in intrastate commerce, any livestock products or poultry products that are not intended for use as human food unless they are denatured or otherwise identified as required by the regulations of the Board or are naturally inedible by humans.

C. No person engaged in the business of buying, selling, or transporting in intrastate commerce, dead, dying, disabled, or diseased animals, or any parts of the carcasses of any animals that died otherwise than by slaughter, shall buy, sell, transport, offer for sale or transportation, or receive for transportation, in such commerce, any dead, dying, disabled, or diseased livestock or poultry or the products of any such animals that died otherwise than by slaughter, unless such transaction or transportation, is made in accordance with such regulations as the Board may prescribe to assure that such animals, or the unwholesome parts or products thereof, will be prevented from being used for human food purposes.

1970, c. 290, § 3.1-884.24; 2008, c. 860.

Article 3. Enforcement and Penalties.

§ 3.2-5410. Prohibitions of bribery or gifts to state employees; assaults or interference with such employees.

A. Any person that shall give, pay, or offer, directly or indirectly, to any officer or employee of the Commonwealth authorized to perform any of the duties prescribed by this chapter or by the regulations of the Board, any money or other thing of value, with intent to influence said officer or employee in the discharge of any such duty, is guilty of a Class 6 felony. Any officer or employee of the Commonwealth authorized to perform any of the duties prescribed by this article who shall accept any money, gift, or other thing of value from any person, given with intent to influence his official action, or who shall receive or accept from any person engaged in intrastate commerce any gift, money, or other thing of value given with any purpose or intent whatsoever, is guilty of a Class 6 felony and shall, upon conviction, be summarily discharged from office.

B. Any person that forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person engaged in or on account of the performance of his official duties under this chapter with the intent to hinder, delay, or prevent the performance of such duties is guilty of a Class 6 felony.

1970, c. 290, § 3.1-884.25; 2008, c. 860.

§ 3.2-5411. Limitation of inspection to plants preparing products for human food.

Inspection shall not be provided under this chapter at any establishment for the slaughter of livestock or poultry or the preparation of any livestock products or poultry products that are not intended for use as human food, but such articles shall, prior to their offer for sale or transportation in intrastate commerce, unless naturally inedible by humans, be denatured or otherwise identified as prescribed by regulations of the Board to deter their use for human food.

1970, c. 290, § 3.1-884.26; 2008, c. 860.

§ 3.2-5412. Inspection of products placed in container; right of access to plants at any time.

A. No inspection of products placed in any container at any official establishment shall be deemed to be complete until the products are sealed or enclosed therein under the supervision of an inspector.

B. For purpose of any inspection of products required by this chapter, inspectors authorized by the Commissioner shall have access at all times, by day or night, to every part of every establishment required to have inspection under this chapter, whether the establishment is operated or not.

1970, c. 290, § 3.1-884.27; 2008, c. 860.

§ 3.2-5413. Administrative detention of violative animals and products.

Whenever any livestock product or poultry product exempted from the definition of a livestock product and from the definition of a poultry product, or any dead, dying, disabled, or diseased livestock or poultry, is found by the Commissioner upon any premises where it is held for purposes of, or during or after distribution in, intrastate commerce or is otherwise subject to this chapter, and there is reason to believe that any such article is adulterated or misbranded and is capable of use as human food, or that it has not been inspected, in violation of the provisions of this chapter or of the Federal Meat Inspection Act or the Federal Poultry Products Inspection Act or the Federal Food, Drug, and Cosmetic Act, or that such article or animal has been or is intended to be distributed in violation of any such provisions, it may be detained for a period not to exceed 20 days, pending action under § 3.2-5414 or notification of any federal authorities having jurisdiction over such article or animal, and shall not be moved by any person from the place where it is located when so detained, until released. All official marks may be required to be removed from such article or animal before it is released unless it appears to the satisfaction of the Commissioner that the article or animal is eligible to retain such marks.

1970, c. 290, § 3.1-884.28; 2008, c. 860.

§ 3.2-5414. Seizure and condemnation provisions.

A. Any livestock product or poultry product or any dead, dying, disabled, or diseased livestock or poultry that is being transported in intrastate commerce, or is otherwise subject to this chapter, or is held for sale in the Commonwealth after such transportation, and that: (i) is or has been prepared, sold, transported, or otherwise distributed or offered or received for distribution in violation of this chapter; (ii) is capable of use as human food and is adulterated or misbranded; or (iii) in any other way is in violation of this chapter, shall be liable to be proceeded against and seized and condemned.

At any time prior to the expiration of the 20-day detention period provided by § 3.2-5413, the Commissioner shall notify the attorney for the Commonwealth for the city or county where such detention was made in writing of said detention. Upon receiving such written notification, the attorney for the Commonwealth shall forthwith file in the name of the Commonwealth an information against the detained property in the clerk's office of the circuit court of the county or city where 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 property 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 articles or animals, 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 property, 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 property 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 matter to the head of the docket and such 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 article or animal, 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 hereinafter provided for, in the manner provided by law for serving a notice, at least ten days before the day therein specified for the hearing on the information, if they be residents of the Commonwealth; and if they be 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 such county or city, or if none be published therein, then in some newspaper having general circulation therein, and a notice shall be sent by registered mail of such seizure to the last known address of the owner of such article or animal. If any such person be served by publication, then no hearing shall be had prior to the expiration of 10 days from the date of the record publication of the notice.

Any person claiming to be the owner of such seized article or animal, 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 in person or 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 article or animal.

If such article or animal 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 treasury of the Commonwealth, but the article or animal shall not be sold contrary to the provisions of this chapter, or the Federal Meat Inspection Act or the Federal Poultry Products Inspection Act, or the Federal Food, Drug, and Cosmetic Act; provided, that upon the execution and delivery of a good and sufficient bond conditioned that the article or animal shall not be sold or otherwise disposed of contrary to the provisions of this chapter, or the laws of the United States, the court may direct that such article or animal 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 laws. When a decree of condemnation is entered against the article or animal 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 article or animal.

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

B. The provisions of this section shall in no way derogate from authority for condemnation or seizure conferred by other provisions of this chapter, or other laws.

1970, c. 290, § 3.1-884.29; 2008, c. 860.

§ 3.2-5415. General criminal penalties; warning letter.

A. Any person that violates any provisions of this chapter for which no other criminal penalty is provided is guilty of a Class 1 misdemeanor. If such violation involves intent to defraud, or any distribution or attempted distribution of an article that is adulterated (except as defined in subdivision 11 of § 3.2-5401) knowing the article to be adulterated, such person is guilty of a Class 6 felony.

B. Nothing in this chapter shall be construed as requiring the Commissioner to report for prosecution or for the institution of condemnation or injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served by a suitable written notice of warning.

1970, c. 290, § 3.1-884.31; 2008, c. 860.

§ 3.2-5416. Authority of Commissioner.

The Commissioner shall have power:

1. To gather and compile information concerning and, to investigate the organization, business, conduct, practices, and management of any person engaged in intrastate commerce, and the relation thereof to other persons; and

2. To require, by general or special orders, persons engaged in intrastate commerce, or any class of them, or any of them, to file with the Commissioner in such form as the Commissioner may prescribe, annual or special, or both annual and special, reports or answers in writing to specific questions furnishing the Commissioner such information as he may require as to the organization, business, conduct, practices, management, and relation to other persons, of the person filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the Commissioner may prescribe, and shall be filed with the Commissioner within such reasonable period as the Commissioner may prescribe, unless additional time be granted in any case by the Commissioner.

a. For the purpose of this chapter the Commissioner shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any person being investigated or proceeded against, and may require by subpoena the attendance and testimony of witnesses and the production of all documentary evidence of any person relating to any matter under investigation. The Commissioner may sign subpoenas and may administer oaths and affirmations, examine witnesses, and receive evidence.

b. Such attendance of witnesses, and the production of such documentary evidence, may be required at any designated place of hearing. In case of disobedience to a subpoena, the Commissioner may invoke the aid of an appropriate circuit court to require the attendance and testimony of witnesses and the production of documentary evidence.

c. Any circuit court within the jurisdiction where such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, issue an order requiring such person to appear before the Commissioner or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.

d. The Commissioner may order testimony to be taken by deposition in any proceeding or investigation pending under this chapter at any stage of such proceeding or investigation. Such depositions may be taken before any person designated by the Commissioner and having the power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under his direction and shall then be subscribed by the deponent. Any person may be compelled to appear and depose and to produce documentary evidence before the Commissioner as hereinbefore provided.

e. Witnesses summoned before the Commissioner shall be paid the same fees and mileage that are paid witnesses in the courts of the Commonwealth, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for the like services in such courts.

f. No person shall be excused from attending and testifying or from producing books, papers, schedules of charges, contracts, agreements, or other documentary evidence before the Commissioner or in obedience to the subpoena of the Commissioner, whether such subpoena be signed or issued by him or his delegate, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter, or of any amendments thereto, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him or it may tend to incriminate him or it or subject him or it to a penalty or forfeiture; but no individual shall be prosecuted or subjected to a penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that any individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.

g. Any person that shall refuse to attend and testify or to answer any lawful inquiry, or to produce documentary evidence, if in his or its power to do so, in obedience to the subpoena of the Commissioner is guilty of a Class 1 misdemeanor.

h. Any person that shall willfully make, or cause to be made, any false entry or statement of fact in any report required to be made under this chapter, or that shall willfully make, or cause to be made, any false entry in any account, record, or memorandum kept by any person subject to this chapter or that shall willfully neglect or fail to make or to cause to be made, full, true, and correct entries in such accounts, records, or memoranda, of all facts and transactions appertaining to the business of such person or that shall willfully remove out of the jurisdiction of the Commonwealth, or willfully mutilate, alter or by any other means falsify any documentary evidence of any person subject to this chapter or that shall willfully refuse to submit to the Commissioner, for the purpose of inspection and taking copies, any documentary evidence of any person subject to this chapter in his possession or within his control, is guilty of a Class 6 felony.

i. If any person required by this chapter to file any annual or special report shall fail so to do within the time fixed by the Commissioner for filing the same, and such failure shall continue for 30 days after notice of such default, such person shall forfeit to the Commonwealth the sum of $100 for each and every day of the continuance of such failure, which forfeiture shall be payable into the treasury of the Commonwealth, and shall be recoverable in a civil suit in the name of the Commonwealth brought in the city or county where the person has his principal office or in any city or county where he shall do business. It shall be the duty of the Attorney General to prosecute for the recovery of such forfeitures. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the Department.

j. Any officer or employee of the Commonwealth who shall make public any information obtained by the Commissioner, without his authority, unless directed by a court, is guilty of a Class 1 misdemeanor.

1970, c. 290, § 3.1-884.32; 2008, c. 860.

§ 3.2-5417. Power of injunction.

The Commissioner is authorized to apply to any appropriate court for an injunction and such court may grant a temporary or permanent injunction restraining a person from violating or continuing the violation of any provision of this chapter, when the court determines that the testimony and evidence presented warrants such action, without reference to adequacy of any remedy existing at law.

1970, c. 290, § 3.1-884.33; 2008, c. 860.

§ 3.2-5418. Limitation on applicability of chapter to matters regulated under federal acts.

The requirements of this chapter shall apply to persons, establishments, animals, and articles regulated under the Federal Meat Inspection Act or the Federal Poultry Products Inspection Act only to the extent provided for in said federal acts.

1970, c. 290, § 3.1-884.34; 2008, c. 860.

Article 4. Smithfield Hams.

§ 3.2-5419. Smithfield hams defined.

Genuine Smithfield hams are hereby defined to be hams processed, treated, smoked, aged, cured by the long-cure, dry salt method of cure and aged for a minimum period of six months; such six-month period to commence when the green pork cut is first introduced to dry salt, all such salting, processing, treating, smoking, curing, and aging to be done within the corporate limits of the town of Smithfield, Virginia.

Code 1950, § 3-667; 1966, c. 702, § 3.1-867; 1968, c. 140; 2008, c. 860.

§ 3.2-5420. Only genuine Smithfield hams to be labeled or advertised as such.

No person shall knowingly, label, stamp, pack, advertise, sell, or offer for sale any ham, either wrapped or unwrapped, in a container or loose, as a genuine Smithfield ham unless such ham be a genuine Smithfield ham as defined in § 3.2-5419.

Code 1950, § 3-668; 1966, c. 702, § 3.1-868; 1968, c. 140; 2008, c. 860.

§ 3.2-5421. Penalty for violation.

Any person violating any of the provisions of this article is guilty of a Class 4 misdemeanor.

Code 1950, § 3-671; 1966, c. 702, § 3.1-871; 1968, c. 140; 2008, c. 860.

Chapter 55. Vinegar.

§ 3.2-5500. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Apple vinegar," "cider vinegar," and similar words mean the product made exclusively from the expressed juice of washed, fresh, whole apples or portions thereof by alcoholic and subsequent acetous fermentations.

"Corn sugar vinegar," "glucose vinegar," and similar words mean the product made by the alcoholic and subsequent acetous fermentations, without distillation, of solutions of corn sugar or glucose prepared from cornstarch.

"Distilled vinegar," "grain vinegar," or "spirit vinegar," or similar words mean the product made by the acetous fermentation of dilute distilled alcohol derived from grain, sugar, syrup, molasses, or refiners' syrup.

"Evaporated apple products vinegar," "vinegar made from evaporated apple products," and similar words mean the product made by the alcoholic and subsequent acetous fermentations of the aqueous extract obtained from clean, sound dried apples, dried chopped apples, or dried apple skins or cores.

"Grape vinegar," "wine vinegar," and similar words mean the product made by the alcoholic and subsequent acetous fermentations of the expressed juice of fresh whole grapes or portions thereof.

"Malt vinegar" and similar words mean the product made by the alcoholic and subsequent acetous fermentations, without distillation, of an infusion of barley malt or cereals whose starch has been converted by malt.

"Sugar vinegar" and similar words mean the product made by the alcoholic and subsequent acetous fermentations, without distillation, of solutions of sugar, syrup, molasses, or refiners' syrup.

Code 1950, § 3-691; 1964, c. 554; 1966, c. 702, § 3.1-900; 2008, c. 860.

§ 3.2-5501. Contents; compliance with definitions.

All vinegar made by fermentation without distillation must carry in solution only the extractive matter derived exclusively from the fruit, grain, sugar or syrup from which it was derived and fermented, and comply with the definitions given in § 3.2-5500.

Code 1950, § 3-690; 1966, c. 702, § 3.1-899; 2008, c. 860.

§ 3.2-5502. When deemed adulterated; exception.

Vinegar that fails to comply with the definitions contained in § 3.2-5500 or that contains any substance or ingredient not derived exclusively from the fruit, grain, sugar, or syrup from which it is made, or that is composed of a compound or mixture of vinegars made from fruit, grain, sugar and syrup, or any two or more of the same, unless its label bears a principal title differing from any of the named substance and clearly identifies the ingredients in the order of their predominance in the mixture, or that contains less than four grams of acetic acid in 100 cubic centimeters of the vinegar at 20 degrees centigrade, shall be deemed adulterated.

Code 1950, § 3-692; 1964, c. 554; 1966, c. 702, § 3.1-901; 2008, c. 860.

§ 3.2-5503. Pyroligneous or acetic acid not to be sold as vinegar.

The product made by the destructive distillation of wood known as pyroligneous acid, or acetic acid derived from other sources than fruit, grain, sugar or syrup, or a product in which any such acid shall be used, mixed or compounded, shall not be sold, offered or had in possession for sale as vinegar.

Code 1950, § 3-693; 1966, c. 702, § 3.1-902; 2008, c. 860.

§ 3.2-5504. Marking packages containing vinegar reduced with water; sale of certain reduced vinegar prohibited.

Packages containing vinegar that has been reduced with water must be plainly marked to indicate the acidity to which it has been reduced and the sale of any vinegar containing less than four percent acid strength is prohibited.

Code 1950, § 3-694; 1964, c. 554; 1966, c. 702, § 3.1-903; 2008, c. 860.

§ 3.2-5505. Marking casks, barrels or other containers.

Each cask, barrel, or other container of vinegar shall be plainly marked with the name and place of business of the manufacturer or distributor thereof, and the kind of vinegar contained therein, in the definitions contained in § 3.2-5500; and no person shall falsely mark any package containing any vinegar so defined, with any other brand or designation or with any additional words, marks, or descriptions that are false or deceptive in any particular whatever.

Code 1950, § 3-695; 1966, c. 702, § 3.1-904; 2008, c. 860.

§ 3.2-5506. Sales of certain vinegar prohibited.

No person shall sell, offer to sell, or have in possession for sale in the Commonwealth:

1. Any vinegar defined in § 3.2-5500 that does not comply with such definitions.

2. Any adulterated or misbranded vinegar.

3. Any vinegar or product in imitation of any vinegar so defined.

4. Any vinegar to which any artificial coloring matter has been added of any kind whatever, or that contains any substance or ingredient not derived exclusively from the fruit, grain, sugar or syrup from which it purports to have been derived.

Code 1950, § 3-696; 1964, c. 554; 1966, c. 702, § 3.1-905; 2008, c. 860.

§ 3.2-5507. Penalty.

Violation of this chapter is a Class 3 misdemeanor.

Code 1950, § 3-697; 1966, c. 702, § 3.1-906; 2008, c. 860.

Chapter 55.1. Waste Kitchen Grease.

§ 3.2-5508. Definitions.

As used in this chapter unless the context requires a different meaning:

"Food establishment" means those operations subject to regulation by the Virginia Department of Health as food establishments under the authority granted by § 35.1-14.

"Registrant" means any person who has registered with the Department as a transporter of waste kitchen grease.

"Renderer" means any person who commercially cooks carcasses, or parts or products of carcasses, of cattle, swine, poultry, and other animals and other waste animal by-products and waste kitchen grease into usable products.

"Transport" or "transportation" means the movement of waste kitchen grease in a motor vehicle on public roads.

"Trap grease" means waste kitchen grease that is removed from a grease trap and is principally derived from food preparation and processing.

"Usable products" means a product resulting from the processing of waste kitchen grease and shall include biofuels, lubricants, and animal feed, provided that such animal feed uses are allowed by the U.S. Food and Drug Administration.

"Waste kitchen grease" means animal fats or vegetable oils that have been used, and will not be reused, for cooking in a food establishment, including trap grease.

2010, c. 868.

§ 3.2-5509. Application; registration term; fees.

A. Except as provided in § 3.2-5510, on and after September 1, 2010, any person who transports waste kitchen grease shall submit an application for registration to the Department not less than 30 days before such transportation. Registration shall be for a term no longer than one year. The application shall be submitted in accordance with a procedure established by the Department for this purpose. The application shall include:

1. The applicant's name and address;

2. A description of the operations to be performed by the applicant;

3. The make, model, license number, and vehicle identification number of any vehicle to be used for the transportation of waste kitchen grease;

4. A nonrefundable application fee of $100;

5. A fee of $100 per vehicle used to transport waste kitchen grease; and

6. Proof of personal injury and property damage liability insurance in an amount not less than $1 million.

B. The Department shall issue each registrant a unique registration number and a registration certificate.

2010, c. 868.

§ 3.2-5510. Individual use; limitations and additional requirements.

A. An individual who transports waste kitchen grease for his own conversion to biofuel shall not be required to register pursuant to § 3.2-5509 provided that he:

1. Transports waste kitchen grease in a container or containers with a total capacity of no more than 275 gallons on any one vehicle at any time;

2. Possesses or controls no more than 1,320 gallons of waste kitchen grease, biofuel feedstock derived from waste kitchen grease, or biofuel at any time, excluding biofuel contained in vehicle fuel tanks used to power the vehicle's movement; and

3. Does not obtain waste kitchen grease from (i) a container owned by a registered transporter of waste kitchen grease, (ii) a food establishment under contract with a registered transporter of waste kitchen grease, or (iii) a container owned by a renderer or collection center.

B. An individual who transports waste kitchen grease to a facility for the purpose of conversion to biofuel shall not be required to register pursuant to § 3.2-5509 provided that:

1. He meets all the requirements of subsection A;

2. He transports waste kitchen grease to no more than one facility, other than on his own property, during a one-day period;

3. Such facility has a capacity to produce no more than 500 gallons per day of biofuel; and

4. Such facility does not possess or control more than 1,320 gallons of waste kitchen grease, biofuel feedstock derived from waste kitchen grease, or biofuel at any time, excluding biofuel contained in vehicle fuel tanks to power the vehicle's movement.

2010, c. 868.

§ 3.2-5511. Recordkeeping.

Every registrant shall record, maintain for two years, and make available for inspection by the Department the following information:

1. The name and address of each location or person from which the registrant obtained the waste kitchen grease for transportation;

2. The quantity of material received from each location or person;

3. The date on which the waste kitchen grease was obtained from each location or person; and

4. The renderer or other processor to which the waste kitchen grease was delivered.

2010, c. 868.

§ 3.2-5512. Possession of certificate; display of decal on motor vehicle.

No person required to register under this chapter shall transport waste kitchen grease without (i) having in his possession a registration certificate and (ii) conspicuously displaying a decal issued by the Commissioner on the exterior of any vehicle used for the transportation of waste kitchen grease.

2010, c. 868; 2014, cc. 114, 241.

§ 3.2-5513. Suspension or revocation.

A. The Commissioner may suspend or revoke a registration at any time if, in his discretion, the registrant has:

1. Sold or offered for sale to an unregistered person any waste kitchen grease knowing such unregistered person would transport such waste kitchen grease in violation of this chapter;

2. Stolen, misappropriated, contaminated, or damaged any waste kitchen grease container or grease therein; or

3. Taken possession of waste kitchen grease from an unregistered transporter other than as allowed in subsection A of § 3.2-5515, or has knowingly taken possession of waste kitchen grease that has been stolen.

B. For purposes of this section, the term "registrant" also includes any person who holds more than a five percent equity, ownership, or debt liability in the person registered to engage in the transportation of waste kitchen grease.

2010, c. 868.

§ 3.2-5514. Waste Kitchen Grease Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Waste Kitchen Grease Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All funds collected under this chapter shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for carrying out the purposes of this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner.

2010, c. 868.

§ 3.2-5515. Penalty.

A. Except for waste kitchen grease transported and delivered pursuant to § 3.2-5510, on and after September 1, 2010, no person shall take possession of more than 55 gallons of waste kitchen grease from an unregistered transporter unless the recipient maintains documentation for two years, which shall be made available for inspection by the Department, of the (i) name and address of the person delivering the waste kitchen grease, (ii) date of receipt of the waste kitchen grease, (iii) delivering vehicle's license plate number and state of registration, and (iv) quantity delivered.

B. The Commissioner may assess a civil penalty of not more than $5,000 for any violation of a provision of this chapter.

C. Any person required to register with the Department pursuant to § 3.2-5509 who fails to so register is guilty of a Class 3 misdemeanor.

2010, c. 868.

§ 3.2-5516. Appeals.

The Commissioner's suspension or revocation of a registration, or the imposition of a civil penalty, may be appealed in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

2010, c. 868.

Chapter 56. Weights and Measures.

§ 3.2-5600. Definitions generally.

As used in this chapter, unless the context requires a different meaning:

"Commodity in package form" means any commodity packaged in any manner in advance of sale in units suitable for either wholesale or retail sale, exclusive of an auxiliary shipping container enclosing packages that individually conform to the requirements of this chapter. An individual item or lot of any commodity not in package form as defined in this section, but on which there is marked a selling price based on an established price per unit of weight or of measure, shall be construed to be commodity in package form.

"Cord" means the amount of wood that is contained in a space of 128 cubic feet when the wood is ranked and well stowed.

"Dockage" means the weight of impurities deducted by agreement between the seller and the buyer.

"Fractional parts of units of weight or measure" means like fractional parts of the value of such unit as prescribed or defined in this chapter, and all contracts concerning the sale of commodities and services shall be construed in accordance with this definition.

"Gross weight" means the total weight of the commodity, including any wrapper, and any other material or thing weighed or packed with such commodity, and including the vehicle or vessel containing the commodity.

"Inspector" means a state inspector who is employed and authorized to test, certify, and seal weights and measures.

"Livestock auction market" means any place of business or establishment where, during the regular course of business, cattle, sheep, swine, or other livestock are offered or exposed for sale, or sold, by weight, or by head, at auction, for compensation or profit.

"Net weight" means the net weight of a commodity, that is, the weight of the commodity exclusive of any wrapper, and any other material or thing weighed or packed with such commodity, and excluding the vehicle or vessel containing the commodity. Net weight is the difference between the gross weight and the tare weight.

"Point-of-sale system" means an electronic cash register capable of recovering stored information related to the sale price of individual retail items.

"Sealer" means an inspector of weights and measures of a city, a county, or a joint city-county jurisdiction.

"Sell" or "sale" includes barter and exchange.

"Tare weight" means the weight of any wrapper, and any other vehicle, vessel, material or thing that is weighed with, but not an actual part of, a commodity sold by weight; thus, tare weight may include, in the case of a packaged commodity, a wrapper, container, packaging material, binding material, preservative, or the like, or in the case of bulk commodity, a vehicle, box, can, jar, or the like.

"Ton" means a unit of 2,000 pounds avoirdupois weight.

"Weighmaster" means the person responsible for weighing livestock that will be offered for sale, based on his weight determination.

"Weight" means the net weight when used in connection with this chapter. Whenever any commodity is sold on the basis of weight, the net weight of the commodity shall be employed, and all contracts concerning commodities shall be so construed.

"Weights and measures" means all weights and measures of every kind, including instruments and devices for weighing and measuring, and any appliances and accessories associated with any or all such instruments and devices.

Code 1950, §§ 3-708.1, 59-71; 1962, c. 298; 1966, c. 702, § 3.1-919; 1991, c. 605; 1993, c. 604; 2008, c. 860.

§ 3.2-5601. Powers and duties of Commissioner.

The Commissioner shall have the custody of the state standards of weight and measure and of the other standards and equipment provided for by this chapter, and shall keep accurate records of the same. The Commissioner shall enforce the provisions of this chapter, and shall have and keep a general supervision over the weights and measures offered for sale, sold, or in use in the Commonwealth.

Code 1950, §§ 3-708.6, 59-77, 59-99, 59-100; 1962, c. 298; 1966, c. 702, § 3.1-924; 1993, c. 604; 2008, c. 860.

§ 3.2-5602. Commissioner to test accuracy of point-of-sale systems.

The Commissioner shall inspect and test point-of-sale systems, as he deems necessary, to determine: (i) the accuracy and correct operation of the equipment; and (ii) if such system utilizes coding means in lieu of manual entry, the accuracy of the data base.

1991, c. 605, § 3.1-924.1; 2008, c. 860.

§ 3.2-5603. Two systems of weights and measures recognized; definitions and tables of National Institute of Standards and Technology to govern.

Both the system of weights and measures in customary use in the United States and the metric system of weights and measures are recognized, and one or the other, or both, of these systems shall be used for all commercial purposes in the Commonwealth. The definitions of basic units of weight and measure, the tables of weight and measure, and weights and measures equivalents, as published by the National Institute of Standards and Technology, are recognized and shall govern weighing and measuring equipment and transactions in the Commonwealth.

Code 1950, § 3-708.2; 1962, c. 298; 1966, c. 702, § 3.1-920; 1993, c. 604; 2008, c. 860.

§ 3.2-5604. State standards of weight and measure.

Such weights and measures in conformity with the standards of the United States as have been supplied to the Commonwealth by the federal government or otherwise obtained by the Commonwealth for use as state standards shall, when the same have been certified as being satisfactory for use as such by the National Institute of Standards and Technology, be the state standards of weight and measure. The state standards shall be kept in a safe and suitable place in the office or laboratory designated by the Commissioner, they shall not be removed from the said office or laboratory except for repairs or for certification, and they shall be maintained in such calibration as prescribed by the National Institute of Standards and Technology. The state standards shall be used only in verifying the office standards and for scientific purposes.

Code 1950, §§ 3-708.4, 59-95, 59-98, 59-99; 1962, c. 298; 1966, c. 702, § 3.1-922; 1993, c. 604; 2008, c. 860.

§ 3.2-5605. Office standards and field standards.

In addition to the state standards provided for in § 3.2-5604, there shall be supplied by the Commonwealth at least one complete set of copies of the state standards to be kept in the office or laboratory designated by the Commissioner and to be known as "office standards," and in addition such "field standards" and such equipment as may be found necessary to carry out the provisions of this chapter. The office standards and field standards shall be verified upon their initial receipt and at least once each year thereafter. The office standards shall be verified by direct comparison with the state standards. After verification of the office standards the field standards shall be verified by comparison with the office standards.

Code 1950, §§ 3-708.5, 59-96, 59-97; 1962, c. 298; 1966, c. 702, § 3.1-923; 1993, c. 604; 2008, c. 860.

§ 3.2-5606. Advice and recommendations of National Institute of Standards and Technology; publications of Institute.

The Commissioner may be guided in the performance of his duties by the advice and recommendations of the National Institute of Standards and Technology. In addition to the provisions of § 3.2-5611 (relating to the Institute's publication Handbook 133), § 3.2-5620 (relating to the Institute's publication, Handbook 44), and § 3.2-5622 (relating to the Institute's publication, Handbook 130), the Board may give official status to any manual of inspection or other publication of that Institute.

Code 1950, §§ 3-708.7, 59-79; 1962, c. 298; 1966, c. 702, § 3.1-925; 1993, c. 604; 2008, c. 860.

§ 3.2-5607. The Board may adopt regulations.

A. The Board may adopt regulations for the enforcement of this chapter. These regulations may include: (i) methods of sale of commodities; (ii) standards of net weight, measure, or count, and standards of fill, for any commodity in package form; (iii) standards concerning the sale and exchange of grains and other agriculture products; (iv) rules governing the technical and reporting procedures to be followed; and (v) the report and record forms and marks of approval and rejection to be used by inspectors and by sealers of weights and measures in the discharge of their official duties. The governing body of any city or county employing a sealer may provide for the technical and reporting procedures to be followed, and the report and record forms and marks of approval and rejection to be used by such sealer within such city or county, unless the Board, after a hearing and with notice to the governing body of the city or county involved, finds that such procedures and forms are inadequate to carry out the purposes of this chapter.

B. Regulations may also include: (i) exemptions from the sealing or marking requirements of § 3.2-5613 for weights and measures of such character or size that such sealing or marking would be inappropriate, impracticable, or damaging to the apparatus in question; and (ii) exemptions from the requirements of § 3.2-5609 for classes of weights and measures found to be of such character that annual retesting is unnecessary to continued accuracy, provided that such exemptions specify, in a schedule, the frequency of required retests for classes of devices so exempted.

C. Specifications, tolerances, and regulations for weights and measures of the character of those specified in § 3.2-5609, designed to eliminate from use, without prejudice to apparatus that conforms as closely as practicable to the official standards, those that: (i) are inaccurate; (ii) are, or are likely to be, faulty because their construction is such that their adjustments are insufficiently permanent or their indications will not repeat correctly; or (iii) facilitate the perpetration of fraud.

Code 1950, §§ 3-708.8, 59-82; 1962, c. 298; 1966, c. 702, § 3.1-926; 1993, c. 604; 2008, c. 860.

§ 3.2-5608. Testing and inspection of standards procured by cities and counties.

The Commissioner shall annually test the standards of weights and measures procured by any city or county for which the appointment of a sealer of weights and measures is provided by this chapter, and shall approve the same when found to be correct.

Code 1950, § 3-708.9; 1962, c. 298; 1966, c. 702, § 3.1-927; 1993, c. 604; 2008, c. 860.

§ 3.2-5609. Testing and inspection of weights and measures offered for sale or commercially used.

A. When not otherwise provided by law, the Commissioner shall have the power to inspect and test, to ascertain if they are correct, all weights and measures kept, offered, or exposed for sale. It shall be the duty of the Commissioner to inspect and test on a periodic basis as he deems necessary, to ascertain if they are correct, all weights and measures commercially used: (i) in determining the weight, measurement, or count of commodities or things sold, or offered or exposed for sale, on the basis of weight, measure, or of count; or (ii) in computing the basic charge or payment for services rendered on the basis of weight, measure, or count. With respect to any single-service devices and any uniformly mass-produced devices, a test may be made on representative samples of such devices; and any lot of which such samples are representative shall be held to be correct or incorrect upon the basis of the results of the inspections and tests on such samples. As used in this chapter, "single-service devices" means any devices designed to be used commercially once and then discarded. "Uniformly mass-produced devices" includes any devices made by means of a mold or die, and not susceptible to individual adjustment.

B. The Commissioner shall submit a report by October 1 of each year to the Chairmen of the Senate Committee on Finance and the Senate Committee on Agriculture, Conservation and Natural Resources, and the Chairmen of the House Appropriations Committee and House Committee on Agriculture, Chesapeake and Natural Resources on the testing and inspection activities of the Department weights and measures program including the number and frequency of inspections for the weights and measures devices.

Code 1950, § 3-708.10; 1962, c. 298; 1966, c. 702, § 3.1-928; 1993, c. 604; 2005, c. 850; 2008, c. 860.

§ 3.2-5610. Investigations by Commissioner.

The Commissioner shall investigate complaints made to him concerning violations of the provisions of this chapter, and shall, upon his own initiative, conduct such investigations as he deems appropriate and advisable to develop information on prevailing procedures in commercial quantity determinations and on possible violations of the provisions of this chapter and to promote the general objective of accuracy in the determination and representation of quantity in commercial transactions.

Code 1950, § 3-708.11; 1962, c. 298; 1966, c. 702, § 3.1-929; 2008, c. 860.

§ 3.2-5611. Commissioner to weigh or measure packages and commodities; packages and commodities ordered off sale.

The Commissioner shall, on a periodic basis as he deems necessary, weigh or measure and inspect packages or amounts of commodities kept, offered, or exposed for sale, sold, or in the process of delivery, to determine whether the same contain the amounts represented and whether they be kept, offered, or exposed for sale, or sold, in accordance with law; and when such packages or amounts of commodities are found not to contain the amounts represented, or are found to be kept, offered, or exposed for sale in violation of law, the Commissioner may order them off sale and may so mark or tag them as to show them to be illegal. In carrying out the provisions of this section, the Commissioner may employ sampling and testing procedures as adopted by the National Conference on Weights and Measures, and published in National Institute of Standards and Technology Handbook 133, "Checking the Net Contents of Packaged Goods," and supplements thereto, or in any publication revising, supplementing, or superseding Handbook 133, for the inspection of packaged commodities in the Commonwealth, except insofar as modified or rejected by regulation. The procedures will determine compliance of a given lot of packages on the basis of the result obtained on a composite sample selected from, and representative of, such lot. No person shall: (i) sell, keep, offer, or expose for sale, any package or amount of commodity that has been ordered off sale or marked or tagged as provided in this section unless and until such package or amount of commodity has been brought into full compliance with all requirements of this chapter; or (ii) dispose of any package or amount of commodity that has been ordered off sale or marked or tagged as provided in this section, and that has not been brought into compliance with the requirements of this chapter, in any manner except with the specific approval of the Commissioner.

Code 1950, § 3-708.14; 1962, c. 298; 1966, c. 702, § 3.1-932; 1993, c. 604; 2008, c. 860.

§ 3.2-5612. Stop-sale, stop-use and stop-removal orders; seizure and impounding of commodities, weights or measures; violation a misdemeanor; judicial review.

Whenever it appears to the Commissioner that there is a violation of any of the provisions of this chapter, he may, in his discretion, issue and enforce a written or printed stop-sale, stop-use, or stop-removal order against any owner or custodian of any commodity, weight, or measure that is being used, sold, offered, or exposed for sale, or involved in any manner in connection with such violation, and he may further, in his discretion, seize and impound any such commodity, weight, or measure until the Commissioner is satisfied that such violation has ceased and that the owner or custodian thereof is in all respects complying with the provisions of this chapter.

Any owner or custodian of any commodity, weight, or measure who sells, or offers for sale, or otherwise disposes of, or attempts to dispose of, any such commodity, weight or measure, while subject to a stop-sale, stop-use, or stop-removal order, or while seized and impounded, is guilty of a Class 1 misdemeanor. Any owner or custodian of any such commodity, weight or measure who feels aggrieved by any action of the Commissioner hereunder shall have the right to apply for a judicial review of the action in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

Code 1950, § 3-708.15; 1962, c. 298; 1966, c. 702, § 3.1-933; 1986, c. 615; 1993, c. 604; 2008, c. 860.

§ 3.2-5613. Sealing or marking of weights and measures; condemnation of incorrect weights and measures.

The Commissioner shall approve for use and seal or mark such weights and measures as he finds, upon inspection and test, to be in compliance as specified in § 3.2-5620, and shall reject and mark or tag as "Condemned for Repairs" such weights and measures as he finds, upon inspection or test, not to be in compliance as specified in § 3.2-5620, but that in his best judgment are susceptible to satisfactory repair. Sealing or marking shall not be required for weights and measures exempted by a Board regulation issued under the authority of §§ 3.2-5607 and 3.2-5620. The Commissioner shall condemn, and may seize and may destroy, weights and measures found not to be in compliance that, in his best judgment, are not susceptible to satisfactory repair. Weights and measures that have been "condemned for repairs" may be confiscated and may be destroyed by the Commissioner if not brought into compliance as required by § 3.2-5621 of this chapter, and may be confiscated and destroyed if used or disposed of contrary to the requirements of that section.

Code 1950, § 3-708.16; 1962, c. 298; 1966, c. 702, § 3.1-934; 1993, c. 604; 2008, c. 860.

§ 3.2-5614. Police powers of Commissioner.

With respect to the enforcement of this chapter and any other acts dealing with weights and measures that he is, or may be, empowered to enforce, the Commissioner is hereby vested with police powers, and is authorized to arrest any violator of the said acts and to seize for use as evidence, without formal warrant, incorrect or unsealed weights and measures or amounts or packages of commodity, found to be used, retained, offered, or exposed for sale, or sold in violation of law. In the performance of his official duties, the Commissioner is authorized to enter and go into or upon, without formal warrant, any structure or premises, and to stop any person whatsoever if necessary to apprehend such person and to require him to proceed, with or without any vehicle of which he may be in charge, to some place that the Commissioner may specify.

Code 1950, §§ 3-708.17, 59-83; 1962, c. 298; 1966, c. 702, § 3.1-935; 2008, c. 860.

§ 3.2-5615. Appointment, terms and compensation of local sealers of weights and measures; discontinuance of local program.

The governing bodies of the respective counties and cities may appoint a sealer of weights and measures. However, two or more counties may appoint jointly a sealer subject to the approval of the Commissioner. Sealers appointed under this chapter shall hold office for such terms and shall receive such salaries, as the appointing powers may prescribe. Such salaries shall be paid out of the county or city treasury, as the case may be. No county or city employing a sealer or sealers and conducting a weights and measures program shall discontinue the program without first giving the Commissioner 12 months' written notice of its intent to do so.

Code 1950, §§ 3-708.19, 59-85; 1962, c. 298; 1966, c. 702, § 3.1-937; 1987, c. 46; 2008, c. 860.

§ 3.2-5616. Fees of sealers.

No fee shall be charged by the sealer of weights and measures, or by the county or city, for inspecting, testing, or sealing of weights or measures, except that the governing body of a city or county employing a sealer may, by ordinance, prescribe a schedule of fees for such services as are rendered by agreement with or at the request of the person or party served. Such fees shall be used only to defray the cost of such services.

Code 1950, §§ 3-708.20, 59-88; 1962, c. 298; 1966, c. 702, § 3.1-938; 2008, c. 860.

§ 3.2-5617. Powers and duties of sealers and deputies.

The sealer of a city or of a county, and his deputy when acting under his instructions and at his direction, shall have the same powers and shall perform the same duties within the city or the county for which appointed as are granted to and imposed upon the Commissioner by §§ 3.2-5609, 3.2-5610, 3.2-5611, 3.2-5612, 3.2-5613, 3.2-5614, and 3.2-5619.

Code 1950, §§ 3-708.21, 59-90; 1962, c. 298; 1966, c. 702, § 3.1-939; 2008, c. 860.

§ 3.2-5618. Standards, equipment, and office space for sealers.

The governing body of each city and county for which a sealer has been appointed as provided for by § 3.2-5615 of this chapter shall: (i) procure at the expense of the city or county, as the case may be, such standards of weight and measure and such additional equipment, to be used for the enforcement of the provisions of this chapter in such city or county, as may be prescribed by the Commissioner; (ii) provide a suitable office for the sealer; and (iii) make provisions for the necessary clerical services, supplies, and transportation, and for defraying contingent expenses incident to the official activities of the sealer in carrying out the provisions of this chapter. When the standards of weight and measure required by this section to be provided by a city or county shall have been examined and approved by the Commissioner, they shall be the official standards for such city or county. It shall be the duty of the sealer to make, or to arrange to have made, at least as frequently as once a year, comparison between his field standards and appropriate standards of a higher order belonging to his city or county or to the Commonwealth, in order to maintain such field standards in accurate condition.

Code 1950, §§ 3-708.22, 59-89; 1962, c. 298; 1966, c. 702, § 3.1-940; 2008, c. 860.

§ 3.2-5619. Commissioner to have concurrent authority with sealers; ordinances in conflict with chapter.

In cities and counties where sealers of weights and measures have been appointed as provided for in this chapter, the Commissioner shall have concurrent authority to enforce the provisions of this chapter. The provisions of this chapter shall be the law throughout the Commonwealth and no city or county shall pass or enforce ordinances in conflict.

Code 1950, § 3-708.23; 1962, c. 298; 1966, c. 702, § 3.1-941; 2008, c. 860.

§ 3.2-5620. Specifications and tolerances for weighing and measuring devices.

The specifications, tolerances, and regulations for commercial weighing and measuring devices, together with amendments thereto, as recommended by the National Institute of Standards and Technology, and published in the National Institute of Standards and Technology Handbook 44 and supplements thereto, or any publication revising, supplementing, or superseding Handbook 44, shall be the specifications, tolerances, and regulations for commercial weighing and measuring devices of the Commonwealth, except insofar as specifically modified, amended, or rejected by regulation issued by the Board. For purposes of this chapter, weights and measures shall be deemed to be in compliance with this chapter: (i) when they conform to all applicable requirements of Handbook 44 and supplements thereto, or any publication revising, supplementing, or superseding Handbook 44; or (ii) when they conform to any regulation adopted by the Board to modify, amend, or reject Handbook 44, as specified in this section. Other weights and measures shall not be in compliance.

1993, c. 604, § 3.1-941.1; 2008, c. 860.

§ 3.2-5621. Rejected weights and measures.

Weights and measures that have been rejected or condemned for repair under the authority of the Commissioner, of an inspector, or of a sealer shall remain subject to the control of the rejecting authority until such time as suitable repair or disposition thereof has been made as required by this section. The owners of such rejected weights and measures shall cause the same to be made in compliance with this chapter within such time as may be authorized by the rejecting authority, or, in lieu of this, may dispose of the same, but only in such a manner as is specifically authorized by the rejecting authority. Weights and measures that have been rejected shall not again be used commercially until they have been officially reexamined by the rejecting authority, and found to be in compliance with this chapter, or until specific written permission for such use is issued by the rejecting authority.

Code 1950, §§ 3-708.24, 59-93; 1962, c. 298; 1966, c. 702, § 3.1-942; 1993, c. 604; 2008, c. 860.

§ 3.2-5622. How certain commodities to be sold.

Commodities in liquid form shall be sold only by liquid measure or by weight, and, except as otherwise provided in this chapter, commodities not in liquid form shall be sold by weight, by measure of length or area, or by count. Liquid commodities may be sold by weight, and commodities not in liquid form may be sold by count, only if such methods give accurate information as to the quantity of commodity sold. The provisions of this section shall not apply to: (i) commodities when sold for immediate consumption on the premises where sold; (ii) vegetables when sold by the head or bunch; (iii) commodities in containers standardized by law; (iv) commodities in package form when there exists a general consumer usage to express the quantity in some other manner; (v) concrete aggregates, concrete mixtures, and loose solid materials, including earth, soil, gravel and crushed stone, when sold by cubic measure; (vi) unprocessed vegetable and animal fertilizer when sold by cubic measure; or (vii) peanuts in large multiple bag lots being sold by cleaners or shellers to processors for further processing or repacking. The articles in clauses (i) through (vii) may be sold on a gross weight basis if agreed upon in writing by the mutual consent of the buyer and seller.

The Uniform Regulation for the Method of Sale of Commodities as adopted by the National Conference on Weights and Measures and published in National Institute of Standards and Technology Handbook 130, "Uniform Laws and Regulations," and supplements thereto or revisions thereof, shall apply to the method of sale of commodities in the Commonwealth, except insofar as modified, amended, or rejected by regulation issued by the Board.

Code 1950, §§ 3-708.25, 59-73; 1962, c. 298; 1966, c. 702, § 3.1-943; 1993, c. 604; 2008, c. 860.

§ 3.2-5623. Information to be shown on packages.

Except as otherwise provided in this chapter, any commodity in package form, introduced or delivered for introduction into, or received in, intrastate commerce, kept for the purpose of sale, or offered or exposed for sale, shall bear on the outside of the package a definite, plain, and conspicuous declaration of: (i) the identity of the commodity in the package unless the same can easily be identified by an actual or prospective buyer through the wrapper or container; (ii) the net quantity of the contents in terms of weight, measure, or count; and (iii) in the case of any package kept, offered, or exposed for sale, or sold any place other than on the premises where packed, the name and place of business of the manufacturer, packer, or distributor. In connection with the declaration required under clause (ii) of this section the qualifying term "when packed," or words of similar import shall not be used, nor shall any term qualifying a unit of weight, measure, or count including "jumbo," "giant," "full" that tends to exaggerate the amount of commodity in a package be used.

The Uniform Regulation for Packaging and Labeling as adopted by the National Conference on Weights and Measures and published in National Institute of Standards and Technology Handbook 130, "Uniform Laws and Regulations," and supplements thereto or revisions thereof, shall apply to the method of sale of commodities in the Commonwealth, except insofar as modified or rejected by regulation.

Code 1950, §§ 3-708.26, 59-103; 1962, c. 298; 1966, c. 702, § 3.1-944; 1993, c. 604; 2008, c. 860.

§ 3.2-5624. Certain packages to show price per single unit of weight, measure, or count.

In addition to the declarations required by § 3.2-5623 of this chapter, any commodity in package form, the package being one of a lot containing random weights, measures, or counts of the same commodity and bearing the total selling price of the package, shall bear on the outside of the package a plain and conspicuous declaration of the price per single unit of weight, measure, or count.

Code 1950, § 3-708.27; 1962, c. 298; 1966, c. 702, § 3.1-945; 2008, c. 860.

§ 3.2-5625. Misleading containers prohibited; contents of container not to fall below standard.

No commodity in package form shall be so wrapped, nor shall it be in a container so made, formed, or filled, as to mislead the purchaser as to the quantity of the contents of the package, and the contents of a container shall not fall below such reasonable standard of fill as may have been prescribed for the commodity in question by the Board.

Code 1950, § 3-708.28; 1962, c. 298; 1966, c. 702, § 3.1-946; 2008, c. 860.

§ 3.2-5626. Advertisement of commodities in package form.

Whenever a commodity in package form is advertised in any manner and the retail price of the package is stated in the advertisement, there shall be a declaration of the basic quantity of contents of the package as is required by law or regulation to appear on the package. Such declaration shall be close to, and conspicuously associated with, the statement of price on the package.

Code 1950, § 3-708.29; 1962, c. 298; 1966, c. 702, § 3.1-947; 1993, c. 604; 2008, c. 860.

§ 3.2-5627. Pricing of retail merchandise.

A. In a point-of-sale system the selling price of a consumer item displayed or offered for sale at retail shall be clearly and conspicuously indicated in Arabic numerals, so as to be readable and understandable by visual inspection, and shall be stamped upon or affixed to the consumer item or posted at or adjacent to the display.

The provisions of this section shall not apply to: (i) greeting cards sold individually that have a code price, readable and understandable by visual inspection, on the back of the card; or (ii) merchandise ordered as a gift by a consumer that is sent by mail or other delivery service to a person other than the consumer by the retailer at the request of the consumer.

B. Any person who knowingly violates the provisions of this section is guilty of a Class 4 misdemeanor.

1991, c. 605, § 3.1-949.1; 1993, c. 604; 2008, c. 860.

§ 3.2-5628. Weights and Measures Fund established; purpose.

There is hereby established in the state treasury a special nonreverting fund to be known as the Weights and Measures Fund, hereinafter referred to as "the Fund." This Fund shall be established on the books of the Comptroller. All money designated for inclusion in the Fund or collected pursuant to this chapter shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. The income and principal of this Fund shall be used only for the purposes of administering and enforcing this chapter and Chapter 57 (§ 3.2-5700 et seq.) of this title.

1991, c. 605, § 3.1-949.2; 1992, c. 242; 2008, c. 860.

§ 3.2-5629. Fees and other moneys received.

No fees shall be charged for the services of any appointee under this chapter unless such services are special, unusual or noncommercial and rendered by agreement with or at the request of the person served.

In the event services be rendered by agreement with or at the request of the party served such fees may be charged as the Commissioner may deem proper. All fees and moneys collected or received pursuant hereto shall be paid into the state treasury to be there maintained in the Weights and Measures Fund (§ 3.2-5628) for the administration and carrying out of the provisions of this chapter.

Code 1950, § 3-708.13; 1962, c. 298; 1966, c. 702, § 3.1-931; 2008, c. 860.

§ 3.2-5630. Violations of pricing requirements.

It shall be a violation of the Virginia Consumer Protection Act (§ 59.1-196 et seq.) for a retail merchant to fail to comply with the provisions of § 3.2-5627.

1991, c. 605, § 3.1-949.3; 2008, c. 860.

§ 3.2-5631. Representations as to price; signs advertising price of petroleum products.

Whenever any commodity or service is sold, or is offered, exposed, or advertised for sale, by weight, measure or count, the price shall not be misrepresented, nor shall the price be represented in any manner tending to mislead or deceive an actual or prospective purchaser. Whenever an advertised, posted, or labeled price per unit of weight, measure, or count includes a fraction of a cent, all elements of the fraction shall be prominently displayed and the numerals expressing the fraction shall be immediately adjacent to, of the same general design and style as, and at least one half the height and width of, the numerals representing the whole cents. Whenever the price of petroleum products is advertised or posted at retail, the amount of any taxes may not be shown separately in such advertising or posting unless the words "plus tax" and the numerals expressing the taxes are prominently displayed in letters and numerals of the same general design and style as, and at least one half the height and width of, the numerals representing the price as specified in this section. The total price of the petroleum products so advertised or posted shall not differ from the price as shown on the pump or in any computed price charged the customer.

Code 1950, § 3-708.31; 1962, c. 298; 1966, c. 702, § 3.1-949; 1993, c. 604; 2008, c. 860.

§ 3.2-5632. Failure to pay advertised cash discount.

Where a discount for the cash purchase of retail petroleum products is offered, willful failure by any person to pay to the customer the full cash discount as offered shall constitute a violation of this chapter.

1991, c. 303, § 3.1-949.01; 2008, c. 860.

§ 3.2-5633. Commissioner to receive enforcement authority for the Stage II Vapor Recovery Programs.

A. Upon the request of the Commissioner, the State Air Pollution Control Board may delegate to the Commissioner its authority under Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1, to implement and enforce any provisions of its regulations covering the storage and transfer of petroleum liquids. Upon receiving such delegation, the authority to implement and enforce the regulations under Chapter 13 of Title 10.1 shall be vested solely in the Commissioner, notwithstanding any provision of law contained in Title 10.1, except as provided herein. The State Air Pollution Control Board, in delegating its authority under this section, may make the delegation subject to any conditions it deems appropriate to ensure effective implementation of the regulations according to the policies of the State Air Pollution Control Board.

B. In addition to the Commissioner's authority to implement and enforce any provisions of the regulations of the State Air Pollution Control Board covering the storage and transfer of petroleum liquids, the Board may adopt regulations as are reasonably necessary for the administration, monitoring and enforcement of the law relating to the storage and transfer of petroleum liquids. Any violation of the provisions covering the storage and transfer of petroleum liquids shall be deemed to be a violation of this chapter, and the Commissioner may take appropriate enforcement action pursuant to the provisions of this chapter.

1993, c. 604, § 3.1-949.4; 2008, c. 860.

§ 3.2-5634. Meat, poultry, and seafood.

All meat, meat products, poultry (whole or parts), and all seafood except shellfish, offered or exposed for sale, or sold, as food shall be offered or exposed for sale and sold by weight, except for immediate consumption on the premises where sold, or as one of several elements comprising a ready-to-eat meal sold as a unit for consumption elsewhere than on the premises where sold. When meat, poultry, or seafood is combined with or associated with some other food elements to form either a distinctive food product or a food combination, such food product or combination shall be offered or exposed for sale and sold by weight, and the quantity representation may be the total weight of the product or combination, and a quantity representation need not be made for each of the several elements of the product or combination. Cooked poultry that is offered or exposed for sale, or sold, as a commodity in package form, it may be sold by minimum net weight and so labeled notwithstanding the provisions of § 3.2-5623 of this chapter.

Code 1950, § 3-708.32; 1962, c. 298; 1966, c. 702, § 3.1-950; 1993, c. 604; 2008, c. 860.

§ 3.2-5635. Bulk sale and delivery of commodities.

All sales in which the buyer and seller are not both present to witness the measurement of a bulk delivery shall be accompanied by duplicate delivery tickets containing the following information:

1. The name and address of the buyer and seller;

2. The date of delivery;

3. The quantity delivered in terms of pounds, tons, gallons or cubic measure; and

4. If applicable, the count of individually wrapped packages, if more than one.

1993, c. 604, § 3.1-954.1; 2008, c. 860.

§ 3.2-5636. Scale house in establishment where livestock is bought from producers.

The scale house at any livestock auction market, receiving station, packing plant, or other establishment where livestock is regularly bought from producers shall be constructed so that all parties in interest may readily observe the weighing of livestock. The weighbeam or indicating apparatus shall be situated so that the weight indications thereon are clearly visible to public view. Provisions shall be made whereby the weighmaster from his normal weighing position has full view of the stock rack on the scale platform, the approaches thereto, and the livestock being weighed. Ready access from the unloading platform or chutes to the scale house must be provided to enable owners of livestock to get to the scale in time to see their livestock weighed. A sign clearly visible to public view shall be affixed on or adjacent to the scale house with the following phrase in letters at least three inches in height: "TO HELP AVOID ERRORS WATCH LIVESTOCK WEIGHED."

Code 1950, §§ 3-708.40, 59-106.1; 1954, c. 93; 1958, c. 629; 1962, c. 298; 1966, c. 702, § 3.1-958; 1993, c. 604; 2008, c. 860.

§ 3.2-5637. Type registering weighbeams or automatic weight recorders required.

Type registering weighbeams or automatic weight recorders shall be installed and used with proper tickets for weighing livestock at all livestock auction markets.

Code 1950, §§ 3-708.41, 59-114.1; 1952, c. 387; 1954, c. 93; 1962, c. 298; 1966, c. 702, § 3.1-959; 2008, c. 860.

§ 3.2-5638. Weight of livestock to be determined on date of sale.

When livestock is offered for sale on a weight basis at livestock auction markets on regular sale days, the weights thereof shall be determined on the date of the sale at such auction markets unless otherwise publicly announced at the auction ring at time of sale.

Code 1950, §§ 3-708.42, 59-114.2; 1952, c. 387; 1962, c. 298; 1966, c. 702, § 3.1-960; 2008, c. 860.

§ 3.2-5639. Announcement of day and hour of livestock sale.

The operator of the livestock auction market shall publicly announce the day and hour when an auction sale of livestock is to begin at least one week in advance of the day of sale so chosen and shall include the time of sale in all information thereafter published concerning the sale. Auction sale of livestock shall begin on the day and hour so selected.

Code 1950, §§ 3-708.43, 59-114.3; 1952, c. 387; 1962, c. 298; 1966, c. 702, § 3.1-961; 2008, c. 860.

§ 3.2-5640. Certain merchants to provide scales for use of customers.

Any person engaged, in the sale of items by weight from a self-service bulk display, shall make available a scale for use by his customers and shall upon request provide customer assistance in weighing of all commodities. The scale shall be accurate and maintained in good working order.

1972, c. 497; 1993, c. 604, § 3.1-962.1; 2008, c. 860.

§ 3.2-5641. Use of word "cord" in connection with purchase or sale of wood, bark, or other forest product.

It shall be unlawful to use the word "cord" or any abbreviation thereof other than to mean the standard as defined in § 3.2-5600 in, or in connection with the purchase or sale of pulpwood, firewood, tanbark, or any forest product customarily measured in cords of any size whatever, or in connection with any quotation of price, or measurement of, or settlement, or payment for any such wood, bark or product, in reference to any cord, unit or measurement.

Code 1950, §§ 3-708.38, 59-101.1; 1950, p. 480; 1962, c. 298; 1966, c. 702, § 3.1-956; 1993, c. 604; 2008, c. 860.

§ 3.2-5642. Determining number of board feet in tree or log.

The standard rule for determining the number of board feet in a tree or log in the Commonwealth shall be the "International 1/4 Inch Log Rule." The provisions of this section shall not prevent the buyer and the seller from agreeing that some other unit of measurement shall be used to determine the number of board feet in trees or logs, provided that such other unit of measurement is specified in a written contract between them.

Code 1950, §§ 3-109.39, 59-101.2; 1960, c. 242; 1962, c. 298; 1966, c. 702, § 3.1-957; 1993, c. 604; 2008, c. 860.

§ 3.2-5643. Obstructing Commissioner or sealers; penalty.

Any person who shall hinder or obstruct in any way the Commissioner, his assistant, or any one of the inspectors, or a sealer in the performance of his official duties is guilty of a Class 1 misdemeanor.

Code 1950, §§ 3-708.45, 59-136; 1962, c. 298; 1966, c. 702, § 3.1-963; 2008, c. 860.

§ 3.2-5644. Impersonating Commissioner or sealer.

Any person who shall impersonate in any way the Commissioner, his agent, or any one of the inspectors, or a sealer by the use of his seal or a counterfeit of his seal, or in any other manner, is guilty of a Class 1 misdemeanor.

Code 1950, §§ 3-708.46, 59-137; 1962, c. 298; 1966, c. 702, § 3.1-964; 2008, c. 860.

§ 3.2-5645. Certain acts declared misdemeanors.

Any person who, by himself or by his servant or agent, or as the servant or agent of another person, performs any one of the acts enumerated in subdivisions 1 through 9 of this section is guilty of a Class 1 misdemeanor:

1. Use or have in possession for the purpose of using for any commercial purpose, sell, offer, or expose for sale or hire, or have in possession for the purpose of selling or hiring, an incorrect weight or measure of any device or instrument used to or calculated to falsify any weight or measure.

2. Use or have in possession for the purpose of current use for any commercial purpose specified in § 3.2-5609 a weight or measure that does not bear a seal or mark such as is specified in § 3.2-5613, unless such weight or measure has been: (i) placed into service by a certified service technician pursuant to § 3.2-5711; (ii) exempted from testing by the provisions of § 3.2-5609; or (iii) exempted by a regulation of the Board issued under the authority of § 3.2-5607 or 3.2-5620.

3. Dispose of any rejected or condemned weight or measure in a manner contrary to law or regulation.

4. Remove from any weight or measure, contrary to law or regulation, any tag, seal, or mark placed thereon by the appropriate authority.

5. Sell, or offer or expose for sale, less than the quantity he represents of any commodity, thing, or service.

6. Take more than the quantity he represents of any commodity, thing, or service when, as buyer, he furnishes the weight or measure by means of which the amount of the commodity, thing, or service is determined.

7. Keep for the purpose of sale, advertise, or offer or expose for sale, or sell, any commodity, thing, or service in a condition or manner contrary to law or regulation.

8. Use in retail trade a weight or measure that is not so positioned that its indications may be accurately read and the weighing or measuring operation observed from some position that may reasonably be assumed by a customer, except in the preparation of packages put up in advance of sale and of medical prescriptions.

9. Violate any provisions of this chapter or of the regulations promulgated under the provisions of this chapter for which a specific penalty has not been prescribed.

Code 1950, §§ 3-708.47, 59-138, 59-139; 1962, c. 298; 1966, c. 702, § 3.1-965; 1993, c. 604; 2008, cc. 255, 860.

§ 3.2-5646. Civil penalties; suit to enjoin violation; compromise.

A. The Commissioner may bring a suit to enjoin the violation of any provision of this chapter, or any regulation made pursuant thereto, in the circuit court of the county or city where the violation occurs, or in the Circuit Court of the City of Richmond if the violation may affect more than one county or city. The Commissioner may request either the attorney for the Commonwealth or the Attorney General to take action under this section, when appropriate.

B. Any person violating a provision of this chapter or regulations adopted hereunder may be assessed a civil penalty by the Board in an amount not to exceed $1,000. In determining the amount of any civil penalty, the Board shall give due consideration to: (i) the history of previous violations of the person; (ii) the seriousness of the violation; and (iii) the demonstrated good faith of the person charged in attempting to achieve compliance with the chapter after notification of the violation.

C. Civil penalties assessed under this section shall be paid into the Weights and Measures Fund as established in § 3.2-5628. The Commissioner shall prescribe procedures for payment of uncontested penalties. The procedure shall include provisions for a person to consent to abatement of the alleged violation and pay a penalty or negotiated sum in lieu of such penalty without admission of civil liability arising from such alleged violation.

Final orders may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner. The orders may be appealed in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1991, c. 605, § 3.1-966.1; 2008, c. 860.

§ 3.2-5647. Warning instead of report of violation.

Nothing in this chapter shall be construed as requiring the Commissioner to report for the institution of proceedings under this chapter, minor violations of this chapter, whenever the Commissioner believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

1991, c. 605, § 3.1-966.2; 2008, c. 860.

§ 3.2-5648. Presumptive proof of use of weight, measure or weighing or measuring device.

For the purposes of this chapter, proof of the existence of a weight or measure or a weighing or measuring device in or about any building, enclosure, stand, or vehicle in which or from which it is shown that buying or selling is commonly carried on, shall, in the absence of conclusive evidence to the contrary, be presumptive proof of the regular use of such weight or measure or weighing or measuring device for commercial purposes, and shall be presumptive proof of such regular use by the person in charge of such building, enclosure, stand, or vehicle.

Code 1950, § 3-708.49; 1962, c. 298; 1966, c. 702, § 3.1-967; 1993, c. 604; 2008, c. 860.

Chapter 57. Weights and Measures Service Agencies and Technicians.

§ 3.2-5700. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Certificate of Conformance" means a document issued by the National Type Evaluation Program of the National Institute of Standards and Technology (NIST) of the U.S. Department of Commerce based on testing in participating laboratories, said document constituting evidence of conformance of a type with the requirements of:

1. National Institute of Standards and Technology Handbook 44; Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices;

2. National Institute of Standards and Technology Handbook 105-1, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, Specifications and Tolerances for Field Standard Weights (NIST Class F);

3. National Institute of Standards and Technology Handbook 105-2, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, Specifications and Tolerances for Field Standard Measuring Flasks; and

4. National Institute of Standards and Technology Handbook 105-3, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, Specifications and Tolerances for Graduated Neck Type Volumetric Field Standards, and supplements thereto, or any publication revising or superseding the publications specified in this definition.

"Condemnation tag" means a tag applied to a weight or measure that fails to pass an official inspection, the application of which tag requires the immediate removal of the weight or measure from service.

"Official inspection" means an inspection by the Commissioner of a commercially used weight or measure pursuant to § 3.2-5609.

"Rejection tag" means a tag applied to a weight or measure that fails to pass an official inspection, the application of which tag requires the removal of the weight or measure from service if the weight or measure is not adjusted to conform to requirements specified by the Weights and Measures Act of Virginia (§ 3.2-5600 et seq.) or any regulation adopted hereunder.

"Service agency" means: (i) a business; or (ii) that portion of a government or political subdivision engaged in the adjustment, installation, placing in service, recommending for use, reconditioning, repairing, servicing, or selling of any weight or measure commercially used or employed (a) in establishing the size, quantity, extent, area, or measurement of quantities, things, products, or articles for distribution or consumption, purchased, offered, or submitted for sale, hire, or award, or (b) in computing any basic charge or payment for services rendered on the basis of something's weight or its measure.

"Service technician" means any individual who for hire, award, commission, or any other payment of any kind, adjusts, installs, places in service, recommends for use, reconditions, repairs, services, or sells a commercial weight or measure.

"Standard" means a required basis for conformance, adjustment, or verification.

"System" means the grouping of interacting, interrelated, or interdependent weights or measures to form a complex whole.

"Traceability" means an accounting of the relationship of the calibration of a weight or measure standard or calibrating equipment to a national standard maintained or adopted by the National Institute of Standards and Technology of the U.S. Department of Commerce.

"Weight or measure" means the terms as defined in § 3.2-5600 and shall also include the term "system" as defined in this chapter.

1992, c. 242, § 3.1-969.1; 2008, c. 860.

§ 3.2-5701. Powers of the Board.

The Board may adopt regulations establishing (i) fees for the registration of service agencies and the certification of service technicians; (ii) categories of registration of service agencies and additional requirements for such registration; (iii) categories of certification of service technicians and additional requirements for such certification; (iv) curricula of training courses for certification and renewal thereof for service technicians; and (v) any other provision for the enforcement and implementation of this chapter, or otherwise necessary or convenient to carry out the purposes of this chapter.

1992, c. 242, § 3.1-969.2; 2008, c. 860; 2013, c. 125.

§ 3.2-5701.1. Powers of the Commissioner.

The Commissioner may establish schedules for the verification of weights or measures standards and calibrating equipment used by service agencies and service technicians.

2013, c. 125.

§ 3.2-5702. Delegation of authority.

The Board may delegate to the Commissioner: (i) any authority vested in it under this chapter, except the authority to adopt regulations; and (ii) any authority contained in § 3.2-5646 relating to the assessment of civil penalties.

1992, c. 242, § 3.1-969.3; 2008, c. 860.

§ 3.2-5703. Registration of service agency.

A. A service agency shall not operate in the Commonwealth without first obtaining registration issued annually by the Commissioner. The application for registration as a service agency or renewal of application shall be made in writing on a form approved by the Commissioner.

B. Each application for registration or renewal shall contain:

1. The name of the service agency, including any fictitious names under which it intends to operate;

2. The principal business address of the service agency;

3. The name of every person functioning as a service technician in the Commonwealth who is in the employ of the service agency;

4. Documentation of verification pursuant to § 3.2-5706 of the weights or measures standards and calibrating equipment used or to be used by the service agency;

5. The fee required by § 3.2-5704; and

6. Proof of a uniquely identifiable security seal for the service agency.

C. The Commissioner may deny, suspend, or revoke any registration or renewal if the application is incomplete, false, or fraudulent. It shall be a violation of this chapter for a person to submit to the Commissioner an application for registration or renewal that he knows to be false or fraudulent.

1992, c. 242, § 3.1-969.4; 2008, c. 860; 2016, c. 168.

§ 3.2-5704. Registration fee.

Except as otherwise provided by § 3.2-5705, each service agency shall pay annually a registration fee of $100. All fees collected pursuant to this section shall be deposited in the state treasury and credited to the Weights and Measures Fund, established by § 3.2-5628.

1992, c. 242, § 3.1-969.5; 2008, c. 860.

§ 3.2-5705. Exemption from registration fee.

A. No service agency shall be required to pay a registration fee under the provisions of this chapter if it is:

1. A business employing service technicians to install, place in service, adjust, repair, service, or recondition weights or measures that are owned or operated by the business but that are used by no other business; or

2. A government or political subdivision engaged in the installation, placing in service, adjusting, repairing, servicing, or reconditioning of weights or measures owned or operated by the government or political subdivision.

B. A service technician that is employed by a business that is exempt from paying a registration fee pursuant to subsection A of this section shall not be required to pay a certification fee under the provisions of this chapter.

1992, c. 242, § 3.1-969.6; 2008, c. 860.

§ 3.2-5706. Examination and verification of standards and calibrating equipment.

Every service agency shall submit any weights or measures standard and calibrating equipment used or to be used by the service agency to the Commissioner for examination and verification, in accordance with a schedule established by the Commissioner. Any weights or measures standard or calibrating equipment calibrated by the weights and measures laboratory of another state, of a territory, or of a protectorate of the United States shall be deemed to be properly calibrated and hence lawful for use in the Commonwealth if the service agency proffering for use the weights or measures standard or calibrating equipment can demonstrate the traceability of the weights or measures standard or calibrating equipment.

1992, c. 242, § 3.1-969.7; 2007, c. 671; 2008, c. 860.

§ 3.2-5707. Certification of service technicians.

A. A person shall not be certified as a service technician unless the service technician is employed by a registered service agency. Every service technician shall obtain certification by the Commissioner before operating in the Commonwealth and shall renew the certification annually. The application for certification as a service technician or renewal shall be made in writing on a form approved by the Commissioner.

B. Each application for certification or renewal thereof shall contain:

1. The full name of the applicant;

2. The name of the service agency employing the applicant;

3. The principal business address of the service agency that employs the service technician;

4. Presentation of valid proof of completion of a course of training related to weights and measures offered by the Commissioner or, in the absence of a training course offered by the Commissioner, a training course approved by the Commissioner. Except as otherwise provided by regulation, proof of completion of a course of training shall be valid for a period of three years. The Commissioner shall not require each application for renewal of a service technician certification to contain a valid proof of completion of a course of training related to weights and measures unless such course is offered by the Commissioner in an electronic format that is available to the applicant online. The Commissioner shall not charge a fee to enroll in the Commissioner's course of training related to weights and measures required for renewal of a service technician certification;

5. The fee required by § 3.2-5708; and

6. A declaration by the applicant that the applicant has the authority to be lawfully employed in the United States.

C. The Commissioner may deny, suspend, or revoke any certification or renewal if the application for certification is incomplete, false, or fraudulent. It shall be a violation of this chapter for a person to submit to the Commissioner an application for certification or renewal that he knows to be false or fraudulent.

1992, c. 242, § 3.1-969.8; 2008, c. 860; 2016, c. 168.

§ 3.2-5708. Certification fee.

Each service technician applying for a certification or renewal of certification shall pay annually a certification fee of $25. All fees collected pursuant to this section shall be deposited in the state treasury and credited to the Weights and Measures Fund established by § 3.2-5628.

1992, c. 242, § 3.1-969.9; 2008, c. 860.

§ 3.2-5709. Service of weights and measures; repair.

A. Any registered service agency or any certified service technician in the employ of the service agency may: (i) place into service, subject to random official inspection, a new or used weight or measure; and (ii) following corrective repair, remove and destroy any rejection tag or condemnation tag and return the weight or measure to service.

B. A service agency or service technician in the employ of the service agency exercising authority under subsection A of this section shall adjust any weight or measure governed by subsection A as closely as practicable to zero error.

1992, c. 242, § 3.1-969.10; 2005, c. 850; 2007, c. 671; 2008, c. 860.

§ 3.2-5710. Certificate of Conformance.

Any service agency engaged in the sale of any weights or measures shall sell only weights or measures that have received a Certificate of Conformance. Any service agency or service technician engaged in the adjustment, installation, placing in service, recommending for use, repair, or servicing of any weight or measure shall do so in a manner so as to ensure the continued validity of the Certificate of Conformance.

1992, c. 242, § 3.1-969.11; 2008, c. 860.

§ 3.2-5711. Service report.

Every service agency shall furnish each service technician in its employ with a supply of report forms entitled "Placed into Service Report" prescribed by the Commissioner. Within five business days after its service technician has placed in or restored to service a weight or measure, the service agency shall provide to the Commissioner a fully executed Placed into Service Report. The service agency shall provide a copy of the fully executed Placed into Service Report to the owner or operator of the weight or measure and shall retain for a period of one year, reckoned from the date of execution, a copy of the fully executed Placed into Service Report, which is subject to inspection by the Commissioner. The Commissioner may accept the Placed into Service Report as sufficient to meet the statutory testing and inspection requirements in § 3.2-5609.

1992, c. 242, § 3.1-969.12; 2005, c. 850; 2007, c. 671; 2008, c. 860.

§ 3.2-5712. Denial, suspension, or revocation of registrations and certifications.

A. The Commissioner may deny, suspend, or revoke the registration of any service agency if he determines that: (i) the service agency has violated any provision of this chapter, any provision of Chapter 56 (§ 3.2-5600 et seq.), or any regulation adopted under either chapter; or (ii) when, in the service of the service agency, any officer of the service agency or any service technician has been convicted in any appropriate court of violating any provision of this chapter, any provision of Chapter 56, or any regulation adopted under either chapter.

B. The Commissioner may deny, suspend, or revoke the certification of any service technician when the Commissioner determines that: (i) the service technician has violated any provision of this chapter or any regulation adopted pursuant to this chapter; or (ii) the service technician has been convicted in any appropriate court of violating any provision of this chapter, any provision of Chapter 56, or any regulation adopted under either chapter.

C. The Commissioner shall afford reasonable notice of an informal fact finding pursuant to § 2.2-4019 to: (i) any service agency prior to and in connection with the denial, suspension, or revocation of its registration under subsection A; and (ii) any service technician prior to and in connection with the denial, suspension, or revocation of the service technician's certification under subsection B.

1992, c. 242, § 3.1-969.13; 2008, c. 860.

§ 3.2-5713. Penalties.

A. Any person violating any provision of this chapter is guilty of a Class 1 misdemeanor, and may, in addition to or in lieu thereof, be assessed a civil penalty, as provided in § 3.2-5714.

B. Nothing in this chapter shall be construed as requiring the Commissioner to report, for the institution of proceedings under this chapter, minor violations of this chapter, whenever the Commissioner believes that the public interest will be adequately served in the circumstances by a suitable written notice of warning.

1992, c. 242, § 3.1-969.14; 2008, c. 860.

§ 3.2-5714. Civil penalties.

A. Any person violating any provision of this chapter or regulations adopted hereunder may be assessed a civil penalty by the Board in an amount not to exceed $1,000 per violation. In determining the amount of any civil penalty, the Board shall give due consideration to: (i) the history of the person's previous violations; (ii) the seriousness of the violation; and (iii) the demonstrated good faith of the person charged in attempting to achieve compliance with the chapter after notification of the violation.

B. Civil penalties assessed under this section shall be paid into the Weights and Measures Fund as established by § 3.2-5628. The Commissioner shall prescribe procedures for payment of uncontested penalties. The procedure shall include provisions for a person to consent to abatement of the alleged violation and pay a penalty or negotiated sum in lieu of such penalty without admission of civil liability arising from such alleged violation.

C. Final orders may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner. Such orders may be appealed in accordance with provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1992, c. 242, § 3.1-969.14; 2008, c. 860.

Chapter 58. Public Weighmasters.

§ 3.2-5800. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Public weighing," means the weighing for any person, upon request, of property, produce, commodities, or articles other than those that the weigher or his employer, or any, is either buying or selling.

"Vehicle" means any device in, upon, or by which any property, produce, commodity, or article is or may be transported or drawn.

Code 1950, §§ 3-709.1, 3-709.17; 1962, c. 126; 1966, c. 702, § 3.1-970, 3.1-986; 2008, c. 860.

§ 3.2-5801. Commissioner to adopt regulations.

The Commissioner may adopt regulations he deems necessary to carry out the provisions of this chapter.

Code 1950, § 3-709.2; 1962, c. 126; 1966, c. 702, § 3.1-971; 2008, c. 860.

§ 3.2-5802. Qualifications of licensed public weighmasters.

A citizen of the United States or a person who has been lawfully admitted for permanent residence, and is not less than 18 years of age, of good moral character, and who has the ability to weigh accurately and to make correct weight certificates, and who has received from the Commissioner a license as a licensed public weighmaster shall be authorized to act as a licensed public weighmaster.

Code 1950, § 3-709.3; 1962, c. 126; 1966, c. 702, § 3.1-972; 1972, c. 824; 1985, c. 24; 2008, c. 860.

§ 3.2-5803. Application for license.

Application for a license as a licensed public weighmaster shall be made upon a form provided by the Commissioner and the application shall furnish evidence that the applicant has the qualifications required by § 3.2-5802.

Code 1950, § 3-709.4; 1962, c. 126; 1966, c. 702, § 3.1-973; 2008, c. 860.

§ 3.2-5804. Determining qualifications of applicant; granting of license; record of applications and licenses.

The Commissioner may adopt guidelines for determining the qualifications of the applicant for a license as a licensed public weighmaster. He may pass upon the qualifications of the applicant upon the basis of the information supplied in the application, or he may examine such applicant orally or in writing or both for the purpose of determining his qualifications. He shall grant licenses as licensed public weighmasters to such applicants as may be found to possess the qualifications required by § 3.2-5802 of this chapter. The Commissioner shall keep a record of all such applications and of all licenses issued thereon.

Code 1950, § 3-709.5; 1962, c. 126; 1966, c. 702, § 3.1-974; 2008, c. 860.

§ 3.2-5805. Licenses and renewal fees.

Before the issuance of any license as a licensed public weighmaster, or any renewal thereof, the applicant shall pay to the Commissioner a fee of $10. Such fees shall be deposited with the State Treasurer to be credited to a fund to be used by the Commissioner for the administration of this chapter.

Code 1950, § 3-709.6; 1962, c. 126; 1966, c. 702, § 3.1-975; 2008, c. 860.

§ 3.2-5806. Issuance of limited licenses to certain public officers and employees.

The Commissioner may, upon request and without charge, issue a limited license as a licensed public weighmaster to any qualified officer or employee of a city or county of the Commonwealth or of a state commission, board, institution, or agency, authorizing such officer or employee to act as a licensed public weighmaster only within the scope of his official employment in the case of an officer or employee of a city or county or only for and on behalf of the state commission, board, institution, or agency in the case of an officer or employee thereof.

Code 1950, § 3-709.7; 1962, c. 126; 1966, c. 702, § 3.1-976; 2008, c. 860.

§ 3.2-5807. Expiration of licenses; applications for renewal.

Each license as licensed public weighmaster shall be issued to expire on December 31 of the calendar year for which it is issued. Any such license shall be valid through January 31 of the next ensuing calendar year or until issuance of the renewal license, whichever event first occurs, if the holder thereof shall have filed a renewal application with the Commissioner on or before December 15 of the year for which the current license was issued. Renewal applications shall be in such form as the Commissioner shall prescribe.

Code 1950, § 3-709.8; 1962, c. 126; 1966, c. 702, § 3.1-977; 2008, c. 860.

§ 3.2-5808. Oath and seal of licensed public weighmaster; Commonwealth not obligated to pay compensation.

Each licensed public weighmaster shall, before entering upon his duties, make oath to execute faithfully his duties. The issuance of a license as licensed public weighmaster shall not obligate the Commonwealth to pay to the licensee any compensation for his services as a licensed public weighmaster. Each licensed public weighmaster shall, at his own expense, provide himself with an impression seal. His name and the words "Commonwealth of Virginia" shall be inscribed around the outer margin of the seal and the words "licensed public weighmaster" shall appear in the center thereof. The seal shall be impressed upon each weight certificate issued by a licensed public weighmaster.

Code 1950, § 3-709.9; 1962, c. 126; 1966, c. 702, § 3.1-978; 2008, c. 860.

§ 3.2-5809. Form of weight certificate and information to be stated thereon; weight certificate as evidence.

The Commissioner shall prescribe the form of weight certificate to be used by a licensed public weighmaster. The weight certificate shall state the date of issuance, the kind of property, produce, commodity, or article weighed, the name of the declared owner or agent of the owner or of the consignee of the material weighed, the accurate weight of the material weighed, the means by which the material was being transported at the time it was weighed, and such other available information as may be necessary to distinguish or identify the property, produce, commodity, or article from others of like kind. Such weight certificate when so made and properly signed and sealed shall be prima facie evidence of the accuracy of the weights shown.

Code 1950, § 3-709.10; 1962, c. 126; 1966, c. 702, § 3.1-979; 2008, c. 860.

§ 3.2-5810. Entries on weight certificate.

A licensed public weighmaster shall not enter on a weight certificate issued by him any weight values but those he has personally determined, and he shall make no entries on a weight certificate issued by some other person. A weight certificate shall be so prepared as to show clearly what weight or weights were actually determined. If the certificate form provides for the entry of gross, tare, and net weights, in any case in which only the gross, the tare, or the net weight is determined by the weighmaster he shall strike through or otherwise cancel the printed entries for the weights not determined or computed. If gross and tare weights are shown on a weight certificate and both of these were not determined on the same scale and on the day for which the certificate is dated, the weighmaster shall identify on the certificate the scale used for determining each weight and the date of each determination.

Code 1950, § 3-709.11; 1962, c. 126; 1966, c. 702, § 3.1-980; 2008, c. 860.

§ 3.2-5811. Only suitable, tested and approved weighing devices to be used.

When making a weight determination as provided for by this chapter a licensed public weighmaster shall use a weighing device that is of a type suitable for the weighing of the amount and kind of material to be weighed, and that has been tested and approved for use by a weights and measures officer of the Commonwealth within a period of 12 months immediately preceding the date of the weighing.

Code 1950, § 3-709.12; 1962, c. 126; 1966, c. 702, § 3.1-981; 2008, c. 860.

§ 3.2-5812. Capacity of scales not to be exceeded; determining gross or tare weight of vehicle or combination of vehicles.

A licensed public weighmaster shall not use any scale to weigh a load the value of which exceeds the nominal or rated capacity of the scale. When the gross or tare weight of any vehicle or combination of vehicles is to be determined, the weighing shall be performed upon a scale having a platform of sufficient size to accommodate such vehicle or combination of vehicles fully, completely, and as one entire unit. If a combination of vehicles must be broken up into separate units in order to be weighed as prescribed herein, each such separate unit shall be entirely disconnected before weighing and a separate weight certificate shall be issued for each such separate unit.

Code 1950, § 3-709.13; 1962, c. 126; 1966, c. 702, § 3.1-982; 2008, c. 860.

§ 3.2-5813. Copies of weight certificates to be retained and kept open for inspection.

A licensed public weighmaster shall keep and preserve for at least one year, or for such longer period as may be specified in the regulations authorized to be issued for the enforcement of this chapter, a legible copy of each weight certificate issued by him, which copies shall be open at all reasonable times for inspection by any weights and measures officer of the Commonwealth.

Code 1950, § 3-709.14; 1962, c. 126; 1966, c. 702, § 3.1-983; 2008, c. 860.

§ 3.2-5814. Weight certificates issued by weighmasters in other states.

Whenever in any other state that licenses public weighmasters, there is statutory authority for the recognition and acceptance of the weight certificates issued by licensed weighmasters of the Commonwealth, the Commissioner is authorized to recognize and accept the weight certificates of the other state.

Code 1950, § 3-709.15; 1962, c. 126; 1966, c. 702, § 3.1-984; 2008, c. 860.

§ 3.2-5815. Certain persons permitted but not required to obtain licenses.

The following persons shall not be required but shall be permitted to obtain licenses as licensed public weighmasters: (i) a weights and measures officer when acting within the scope of his official duties; (ii) a person weighing property, produce, commodities, or articles that he or his employers, if any, is either buying or selling; and (iii) a person weighing property, produce, commodities, or articles in conformity with the requirements of federal statutes or the statutes of his state relative to warehousemen or processors.

Code 1950, § 3-709.16; 1962, c. 126; 1966, c. 702, § 3.1-985; 2008, c. 860.

§ 3.2-5816. Certain acts forbidden to persons not licensed as public weighmasters.

No person shall assume the title "licensed public weighmaster," or any title of similar import, perform the duties or acts to be performed by a licensed public weighmaster under this chapter, hold himself out as a licensed public weighmaster, issue any weight certificate, ticket, memorandum, or statement for which a fee is charged or engage in the full-time or part-time business of public weighing, unless he holds a valid license as a licensed public weighmaster.

Code 1950, § 3-709.17; 1962, c. 126; 1966, c. 702, § 3.1-986; 2008, c. 860.

§ 3.2-5817. Suspension or revocation of license.

The Commissioner is authorized to suspend or revoke the license of any licensed public weighmaster: (i) when he is satisfied, after a hearing upon 10 days' notice to the licensee, that the said licensee has violated any provision of this chapter or of any regulation of the Commissioner affecting licensed public weighmasters; or (ii) when a licensed public weighmaster has been convicted in any appropriate court of violating any provision of this chapter or of any regulation issued under authority of this chapter.

Code 1950, § 3-709.18; 1962, c. 126; 1966, c. 702, § 3.1-987; 2008, c. 860.

§ 3.2-5818. Requesting false weighing or false weight certificate; issuance of weight certificate by unlicensed person.

Any person who requests a licensed public weighmaster to weigh any property, produce, commodity, or article falsely or incorrectly, or who requests a false or incorrect weight certificate, or any person who issues a weight certificate simulating the weight certificate prescribed in this chapter and who is not a licensed public weighmaster, is guilty of a Class 4 misdemeanor; and upon a second or subsequent conviction such person is guilty of a Class 2 misdemeanor.

Code 1950, § 3-709.19; 1962, c. 126; 1966, c. 702, § 3.1-988; 2008, c. 860.

§ 3.2-5819. Falsification or presealing of weight certificate by licensed weighmaster; delegation of authority to unlicensed person.

Any licensed public weighmaster who falsifies a weight certificate, or who delegates his authority to any person not licensed as a licensed public weighmaster, or who preseals a weight certificate with his official seal before performing the act of weighing, is guilty of a Class 2 misdemeanor.

Code 1950, § 3-709.20; 1962, c. 126; 1966, c. 702, § 3.1-989; 2008, c. 860.

§ 3.2-5820. Penalty for violation of chapter.

Any person who violates any provision of this chapter or any regulation adopted pursuant thereto for which no specific penalty has been provided is guilty of a Class 4 misdemeanor.

Code 1950, § 3-709.21; 1962, c. 126; 1966, c. 702, § 3.1-990; 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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