A.R.S. tit. 36 ch. 8 — Arizona Revised Statutes Title 36 Chapter 8 — Pure Food Control

36-901. Definitions In this article, unless the context otherwise requires: 1. "Advertisement" means all representations disseminated in any manner or by any means other than by labeling for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of food. 2. "Color additive" means a material that both: (a) Is a dye, pigment, or other substance made by a process of synthesis or similar artifice, or extracted, isolated, or otherwise derived, with or without intermediate or final change of identity from a vegetable, animal, mineral, or other source. (b) When added or applied to a food is capable, alone or through reaction with other substance, of imparting color to that food, except that color additive does not include any material that has been exempted under the federal act. The term "color" includes, but is not limited to, black, white and intermediate grays. This paragraph shall not be construed to apply to any pesticide chemical, soil or plant nutrient, or other agricultural chemical solely because of its effect in aiding, retarding or otherwise affecting, directly or indirectly, the growth or other natural physiological process of produce of the soil, and thereby affecting its color, whether before or after harvest. 3. "Contaminated with filth" applies to any food not securely protected from dust, from dirt, and, as far as may be necessary by all reasonable means, from all foreign or injurious contaminations. 4. "Director" means the director of the department of health services. 5. "Federal act" means the federal food, drug and cosmetic act, as amended (21 United States Code section 301 et seq.). 6. "Food" or "article" means: (a) Articles used for food or drink for man or animals. (b) Chewing gum. (c) Articles used for components of any such article. 7. "Food additive" means any substance, the intended use of which results or may be reasonably expected to result, directly or indirectly, in its becoming a component of or otherwise affecting the characteristics of any food, including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting or holding food, and including any source of radiation intended for any use if the substance is not generally recognized among experts qualified by scientific training and experience to evaluate its safety as having been adequately shown through scientific procedures, or in the case of a substance used in a food prior to January 1, 1958 through either scientific procedures or experience based on common use in food, to be safe under the conditions of its intended use. Food additive does not include: (a) A pesticide chemical in or on a raw agricultural commodity. (b) A pesticide chemical to the extent that it is intended for use or is used in the production, storage or transportation of any raw agricultural commodity. (c) A color additive. (d) Any substance used in accordance with a sanction or approval granted pursuant to laws or regulations administered by the federal food and drug administration. 8. "Immediate container" does not include package liners. 9. "Label" or "labeling" means a display of written, printed or graphic matter upon the immediate container or wrapper of an article or accompanying that article. 10. "Perishable food" means any food that may spoil or otherwise become unfit for human consumption because of its nature, type or physical condition, including fresh and processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits and vegetables and foods that have been packaged, refrigerated or frozen. 11. "Pesticide chemical" means any substance that alone, in chemical combination or in formulation with one or more other substances is an "economic poison" within the meaning of the federal insecticide, fungicide and rodenticide act (7 United States Code sections 135-135k) and that is used in the production, storage or transportation of raw agricultural commodities. 12. "Prepared food" means any food commercially processed and prepared for human consumption. 13. "Raw agricultural commodity" means any food in its raw or natural state, including, but not limited to, all fruits that are washed, colored or otherwise treated in their unpeeled natural form prior to marketing. 14. "Special inspection warrant" means an order in writing issued in the name of the state of Arizona, signed by a magistrate and directed to the director or his designee, authorizing him to enter into or upon any public or private property to make an inspection authorized by law. 36-902. Prohibited acts The following acts and the causing thereof within the state of Arizona are prohibited: 1. The manufacture, sale, delivery, holding or offering for sale of any food that is known to be adulterated or misbranded. 2. The adulteration or misbranding of any food. 3. The receipt in commerce of any food that is known to be adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise. 4. The dissemination of any false advertisement with respect to a food. 5. The giving of a guaranty or undertaking as provided for in section 36-914 which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by and containing the name and address of the person residing in the state of Arizona from whom he received the food in good faith. 6. The removal or disposal of a detained or embargoed food in violation of section 36-910. 7. The intentional alteration, mutilation, destruction, obliteration or removal of the whole or any part of the labeling of a food, or the doing of any other act with respect to a food, if such act is done while such food is held for sale and results in such food being adulterated or misbranded. 8. Forging, counterfeiting, simulating or falsely representing, or without proper authority using, any mark, stamp, tag, label or other identification device authorized or required by regulations promulgated under the provisions of this article or of the federal act. 36-903. Food standards When the director determines that such action will promote honesty and fair dealing in the interest of consumers, the director shall promulgate regulations establishing for any food or class of food a reasonable definition and standard of identity, or reasonable standard of quality or fill of container or any combination thereof. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the director may designate the optional ingredients which shall be named on the label. The definitions and standards so promulgated shall conform so far as practicable to the definitions and standards promulgated under authority of the federal act. The director shall not establish standards for any food or class of food regulated for any other state agency. 36-904. Food adulteration A. A food is adulterated if one or more of the following conditions exist: 1. It bears or contains any poisonous or deleterious substance which may render it injurious to health, but if the substance is not an added substance such food shall not be considered adulterated under this paragraph if the quantity of such substance in such food does not ordinarily render it injurious to health. 2. It is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of section 36-905, subsection A. 3. It is, or it bears or contains, any food additive which is unsafe within the meaning of section 36-905, provided that where a pesticide chemical has been used in or on a raw agricultural commodity in conformity with an exemption granted or a tolerance prescribed under section 36-905 and such raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating or milling, the residue of such pesticide chemical remaining in or on such processed food shall, notwithstanding the provisions of section 36-905, not be deemed unsafe if such residue in or on the raw agricultural commodity has been removed to the extent possible in good manufacturing practice and the concentration of such residue in the processed food when ready-to-eat is not greater than the tolerance prescribed for the raw agricultural commodity. 4. It consists in whole or in part of a diseased, contaminated, filthy, putrid or decomposed substance, or it is otherwise unfit for food. 5. It has been produced, prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome or injurious to health. 6. It is the product of a diseased animal or an animal, other than wildlife, which has died other than by slaughter, or which has been fed uncooked garbage, except bakery and creamery products, commercial vegetables and all fruits, or offal from a slaughterhouse, with the exception of paunch wastes. 7. Its container is composed in whole or in part of any poisonous or deleterious substance which may render the contents injurious to health. 8. Any required constituent has been omitted or abstracted in whole or in part. 9. Any substance has been substituted in whole or in part for a substance normally found in the food or required to be present in the food by rules adopted under section 36-903. 10. Damage or inferiority has been concealed in any manner. 11. Any substance has been added to the food 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. 12. 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 per cent, harmless natural wax not in excess of four-tenths of one per cent, harmless natural gum, and pectin. This paragraph shall not apply to any confectionery by reason of its containing less than five per cent by weight of alcohol or to any chewing gum by reason of its containing harmless nonnutritive masticatory substances. 13. It is or bears or contains any color additive which is unsafe within the meaning of section 36-905, subsection A. B. Commercial feed and whole cottonseed which contain the levels of aflatoxin prescribed by section 3-2611.01 shall not be deemed adulterated. C. Notwithstanding this section, whole cottonseed or cottonseed products deemed unadulterated pursuant to section 3-2611.01 and food additives and resulting substances used in accordance with a sanction or approval granted pursuant to laws or regulations administered by the federal food and drug administration are not deemed adulterated for purposes of this section. 36-905. Tolerances for added poisonous ingredients A. Any added poisonous or deleterious substance, any food additive, any pesticide chemical in or on a raw agricultural commodity or any color additive shall be deemed unsafe for the purpose of paragraphs 2, 3 and 13 of section 36-904, unless there is in effect a regulation pursuant to subsection B of this section limiting the quantity of such substance, and the use or intended use of such substance conforms to the terms prescribed by such regulation. A food shall not, by reason of bearing or containing such substance in accordance with such regulation, be considered adulterated within the meaning of paragraph 1 of section 36-904. B. The director may adopt, amend or repeal regulations, whether or not in accordance with regulations promulgated under the federal act, prescribing tolerances, including zero tolerances, for any added poisonous or deleterious substances, for food additives, for pesticide chemicals in or on raw agricultural commodities or for color additives and prescribing the conditions under which a food additive or a color additive may be safely used and exemptions where such food additive or color additive is to be used solely for investigational or experimental purposes. In prescribing tolerances in the case of pesticide chemicals in or on raw agricultural commodities consideration shall be given to the persistence of background count due to prior applications of the pesticide chemical, and such rules and regulations may allow for any background count and consideration shall be given to restrictions, or lack of restrictions, on pesticide chemical use established pursuant to law. In prescribing tolerances in the case of pesticide chemicals, such tolerances shall not be more restrictive than those established pursuant to the federal act. The director may take action under this subsection upon his own motion or upon the petition of any interested party requesting that such action be taken. The petitioner, if any, shall establish by data submitted to the director that a necessity exists for such action and that its effect will not be detrimental to the public health. If the data furnished by the petitioner is not sufficient for the director to determine whether such action should be taken, the director may require additional data to be submitted and failure to comply shall be sufficient grounds to deny the request. In adopting, amending or repealing regulations relating to such substances the director shall consider among other relevant factors the following, which the petitioner, if any, shall furnish: 1. The name and all pertinent information concerning such substance, including where available its chemical identity and composition, a statement of the conditions of the proposed use, including directions, recommendations, suggestions and specimens of proposed labeling, all relevant data bearing on the physical or other technical effect, and the quantity required to produce such effect. 2. The probable composition of any substance formed in or on a food resulting from the use of such substance. 3. The probable consumption of any such substance in the diet of man and animals, considering any chemically or pharmacologically related substance in such diet. 4. Safety factors which, in the opinion of experts qualified by scientific training and experience to evaluate the safety of such substances for the use for which they are proposed, are generally recognized as appropriate for the use of animal experimentation data. 5. The availability of any needed practicable methods of analysis for determining the identity and quantity of: (a) Such added substance in or on a food. (b) Any other substance formed in or on a food because of the use of such added substance. (c) The added substance and all its intermediates and impurities. 6. Facts supporting a contention that the proposed use of such substance will serve a useful purpose. 36-906. Food misbranding A food is misbranded if one or more of the following conditions exists: 1. Its labeling is false or misleading. 2. It is offered for sale under the name of another food with or without other descriptive words, or under any name which is likely to be misleading. 3. Its container is so made, formed or filled as to be misleading. 4. It is in package form unless it bears a label containing: (a) The name and place of business of the manufacturer, packer or distributor. (b) An accurate statement of the quantity of the contents in terms of weight, measure or numerical count, except that reasonable variations may be permitted and exemptions as to small packages may be established by regulations prescribed by the director. 5. Any word, statement or other information required by or under authority of this article to appear on the label does not appear in the labeling prominently and conspicuously as compared with other words, statements, designs or devices 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. 6. Any word, statement or other information required by or under authority of this article to appear on the label does not also appear on the outside container or wrapper, if any, of the retail package of the food, or is not easily legible through the outside container or wrapper. 7. 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 section 36-903, unless: (a) It conforms to such definition and standard, and (b) 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 present in such food, other than spices, flavoring and coloring. 8. 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 section 36-903 and its quality falls below such standard, unless its label bears in such manner and form as such regulations specify a statement that it falls below such standard, or (b) A food for which a standard of fill of container has been prescribed by regulations as provided by section 36-903 and it falls below the applicable standard of fill, unless its label bears in such manner and form as such regulations specify a statement that it falls below such standard. 9. It is a food not subject to the provisions of paragraph 7 of this section, unless it bears labeling clearly stating: (a) The common or usual name of the food, if any, and (b) If made from two or more ingredients, the common or usual name of each ingredient; Except that spices, flavorings and colorings, other than those sold as such, may be designated as spices, flavorings and colorings without naming each, provided that to the extent compliance with the requirements of subdivision (b) of this paragraph is impracticable or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the director, and that the requirements of subdivision (b) of this paragraph shall not apply to food products which are packaged at the direction of purchasers at retail at the time of sale, the ingredients of which are disclosed to the purchasers by other means in accordance with regulations promulgated by the director. 10. 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 director prescribes by regulation as necessary to fully inform purchasers as to its value for such uses. 11. 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 paragraph is impracticable, exemptions shall be established by regulations promulgated by the director. 12. It is intended as an ingredient of another food and when used according to directions will result in the final food product being adulterated or misbranded. 13. It is a color additive unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive prescribed under the provisions of the federal act. 14. It contains vegetable fat or oil unless its label prominently and conspicuously specifies such vegetable fat or oil by common name and the percentage such fat or oil constitutes of the whole food product. If a vegetable fat blend is used the label shall state the percentage the fat blend represents of the whole food product, followed by the words "vegetable fat consisting of a blend of" and a listing of each vegetable fat or oil by its common name. 36-907. Misleading labeling and advertisements; considerations When a food is alleged to be misbranded because the labeling is misleading, or when an advertisement of a food is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading, there shall be considered, among other things and in addition to representations made or suggested in the labeling or advertising, the extent to which the labeling or advertisement fails to reveal facts material in light of such representations or material with respect to consequences which may result from use of the food under the conditions of use prescribed in the labeling or advertisement or under such conditions of use as are customary or usual. 36-908. Special inspection warrant; violation; classification A. The director and his designees having powers and duties under this article or the rules and regulations adopted pursuant to this article involving inspection of real or personal property, including any factory, warehouse, vehicle or establishment in which foods are manufactured, processed, packed, transported or held for introduction into commerce, for the purpose of pure food control may appear before a magistrate and apply for, obtain and execute special inspection warrants in accordance with the requirements of this section. B. Upon showing by the affidavit of the director or his designee that consent to entry for inspection purposes has been refused or circumstances justify the failure to seek such consent, special inspection warrants may be issued by a magistrate for inspection of any public or private real and personal properties. C. The warrant shall be in substantially the following form: "County of _______________, state of Arizona To the director of the department of health services or any designee in the state of Arizona, Proof by affidavit having been this day made before me by (person or persons whose affidavit has been taken) that in and upon certain premises in the (city, town or county) of _______________ and more particularly described as follows: (describe the premises within reasonable particularity) there now exists a reasonable governmental interest to determine if upon such premises there exists a violation of (section __________ of the Arizona Revised Statutes) and/or (section __________ of regulation or ordinance) you are therefore commanded in the daytime (or during reasonable business hours), to make an inspection of said premises as soon as practicable. Date, signature and title of office." The endorsement on the warrant shall be in substantially the following form: "Received by me __________, 19___, at __________ o'clock __________. (Name of director or designee)." The return of officer shall be in substantially the following form: "I hereby certify that by virtue of the within warrant I searched the named premises and found the following things (describe findings). Dated this __________ day of _______________, 19___. (Name of director or designee)." D. The warrant may be served by the director or his designee mentioned in its directions, but by no other person except in aid of the director or his designee on his requiring it, the director or his designee being present and acting in its execution. E. A warrant shall be executed and returned to the magistrate who issued it within ten days after its date. After the expiration of that time, the warrant shall unless executed be void. F. Any person who knowingly fails or refuses to permit an inspection lawfully authorized by warrant issued pursuant to this article is guilty of a class 2 misdemeanor. 36-909. Samples or specimens The director may obtain such samples or specimens as he requires for the purpose of pure food control. The chief of the state laboratory shall make or cause to be made examinations of samples secured to determine whether any provision of this article is being violated. 36-910. Seizure A. When the director finds or has probable cause to believe that any food is adulterated or misbranded within the meaning of this article as to be dangerous or fraudulent, he shall affix to such food or its container a tag or other appropriate marking, giving notice that such food is, or is suspected of being, adulterated or misbranded and has been detained or embargoed, and warning all persons not to remove or dispose of such food by sale or otherwise until permission for removal or disposal is given by the director or the court. It is unlawful for any person to remove or dispose of such detained or embargoed food by sale or otherwise without such permission. B. When a food detained or embargoed under subsection A has been found by the director to be adulterated or misbranded, he shall, with the assistance of the attorney general or of the county attorney of the county in which such food is found, petition the superior court in the county in which the food is detained or embargoed for an order condemning such food. When the director has found that a food so detained or embargoed is not adulterated or misbranded, he shall remove or cancel the tag or other marking. C. If the court finds that a detained or embargoed food is adulterated or misbranded and that such adulteration or misbranding cannot be corrected by proper processing or labeling, the court shall by order direct that such food be destroyed at the expense of the claimant of the food under the supervision of the director, and all court costs and fees, storage and other proper expenses shall be taxed against the claimant. If the court finds that a detained or embargoed food is adulterated or misbranded, but that such adulteration or misbranding can be corrected by proper processing or labeling, the court may by order direct that, after court costs and fees, storage and other expenses have been paid by the claimant and a good and sufficient bond, guaranteeing that such food shall be so processed or labeled, has been executed, such food shall be returned to the claimant for such processing or labeling under the supervision of the director. Upon representation to the court by the director that the food is no longer in violation of this article, the food shall be released from the supervision and control of the director and the bond shall be exonerated. D. When the director finds in any room, building, vehicle of transportation or other structure any meat, sea food, poultry, vegetable, fruit or other perishable foods which are unsound or contain any filthy, decomposed or putrid substances, or which may be poisonous or presents an imminent endangerment to health, the director shall forthwith seize them and, unless within five days of such seizure the claimant serves a written protest to such action upon the director, destroy them. If such a written protest is timely served on the director, he may petition the court as in subsection B of this section for an order condemning the food. An action brought under this subsection shall be given a calendar preference by the court. 36-911. Enforcement regulations; decisions; appeal A. The director may make regulations to enforce the provisions of this article which shall conform insofar as practicable with those promulgated under the federal act. The director may adopt a manual of procedures governing his operation. B. All decisions rendered by the director, pursuant to the applicable law and regulations, shall be in writing and filed in the office of the department of health services. Notice of such decisions shall be given to the affected person by registered mail with return receipt requested. If no appeal is taken within the time provided by law, the decision of the director shall be final. 36-912. Prosecution The attorney general or the county attorney of the county in which the violation occurs to whom the director reports any violation of this article shall cause appropriate proceedings to be instituted in the proper court. Before any violation of this article is reported to any such attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views before the director or his designated agent, either orally or in writing, in person or by attorney, with regard to such contemplated proceeding. 36-913. Injunction proceedings In addition to the remedies provided in this article, the director, with the assistance of the attorney general or of the county attorney of the county in which the violation occurs, may apply to the superior court for injunctive relief. 36-914. Violation; classification; guaranty A. Any person who violates any of the provisions of section 36-902 is guilty of a class 2 misdemeanor. In the instance of a continuing violation, each day constitutes a separate offense. B. No person shall be subject to the penalties of subsection A of this section for having violated paragraph 1 or 3 of section 36-902 if he establishes a guaranty or undertaking, designating this article, and signed by and containing the name and address of the person residing in the state of Arizona, from whom he received the article in good faith, to the effect that such article is not adulterated or misbranded within the meaning of this article. C. No publisher, broadcast or telecast licensee or agency or medium for the dissemination of an advertisement shall be liable under this section by reason of the dissemination by him of such false advertisement, unless one or more of the following exists: 1. He knew or had reason to know that the advertisement was false. 2. He is also the manufacturer, packer, distributor or seller of the food to which the false advertisement relates. 3. He has refused a request of the director to furnish the director the name and post-office address of the manufacturer, packer, distributor, seller or advertising agency who caused him to disseminate such advertisement. 36-915. Enrichment, fortification and labeling of flour, cereals and related foods; penalty A. The director shall adopt enrichment standards governing the identity and quantity of vitamins and minerals to be added to flour produced from small grain, corn and soybeans, and for any food products containing twenty five per cent or more of flour produced from small grain, corn or soybeans. B. The director shall adopt fortification standards governing the identity and quantity of vitamins and minerals to be added to processed cereal. C. Such standards shall not exceed those necessary for the protection of the public health and safety. In adopting standards the director shall consider the current enrichment and fortification standards established by the secretary of health, education and welfare under authority of federal law. D. The director shall adopt rules and regulations governing labeling of enriched or fortified products which rules and regulations shall contain standards for listing of added ingredients and a statement of the quantity of each within stated limits. E. It shall be unlawful for any person to manufacture, sell or offer for sale for human consumption any foods or food products not enriched, fortified or labeled in accordance with the requirements of this section or the standards adopted by the director pursuant to this section. The provisions of this subsection shall not apply to any person who sells or offers to sell such foods or food products in an isolated transaction or transactions which are not conducted as a primary or regular business operation for such person. 36-916. Donation of food items; exemption from civil liability; definitions A. A person who makes a good faith donation of an apparently wholesome food item or an apparently fit nonfood grocery product to a charitable or nonprofit organization or to any other person is not liable for damages in any civil action for any injury or death due to the condition of the apparently wholesome food item or apparently fit nonfood grocery product unless the injury or death is a direct result of the intentional misconduct or gross negligence of the donor. B. A person who harvests an apparently wholesome food item and makes a good faith donation of the apparently wholesome food item to a charitable or nonprofit organization or to any other person is entitled to the same exemption from civil liability as prescribed in subsection A. C. A charitable or nonprofit organization or an officer, employee or volunteer of the organization that in good faith receives and distributes, without charge or any other person who in good faith receives and distributes, without charge, to an immediate family member, a donation of an apparently wholesome food item or an apparently fit nonfood grocery product is not liable for damages in any civil action for any injury or death due to the condition of the apparently wholesome food item or apparently fit nonfood grocery product unless the injury or death is a direct result of the intentional misconduct or gross negligence of the donating person or organization or its officers, employees or volunteer workers. D. If the owner or manager of property allows a person to glean food on that property for gratuitous distribution by that person or a charitable or nonprofit organization, the owner and manager are not liable for damages in any civil action for the injury or death of the person making the collection unless the injury or death is the direct result of the intentional misconduct or gross negligence of the owner or manager. E. A person who makes a good faith donation to a charitable or nonprofit organization of a food item or a nonfood grocery product that does not meet all quality and labeling standards imposed by federal, state and local laws and regulations is entitled to the same exemption from civil liability as prescribed in subsection A if the person making the donation informs the charitable or nonprofit organization that the food item or nonfood grocery product does not meet those quality and labeling standards and the organization agrees to recondition the donation to comply with all applicable quality and labeling standards before its distribution. F. A charitable or nonprofit organization or an officer, employee or volunteer of the organization that in good faith receives and distributes, without charge to the recipient, a donation of a food item or a nonfood grocery product that it knows or has reason to know does not meet all quality and labeling standards imposed by federal, state and local laws and regulations is entitled to the same exemption from civil liability as prescribed in subsection C if the organization or its officers, employees or volunteers recondition the food item or nonfood grocery product in accordance with all applicable quality and labeling standards. G. The director may enforce the provisions of this section in any manner not specifically prohibited by this article. H. For the purposes of this section: 1. "Donation" means an item that is given for a fee significantly less than the value of the item or without requiring anything of monetary value from the charitable or nonprofit organization or any other person if the item is ultimately intended for gratuitous distribution. 2. "Fit nonfood grocery product" means a nonfood grocery product that meets all quality and labeling standards imposed by federal, state and local laws and regulations including a product not readily marketable due to any condition such as packaging, appearance, age, surplus or size and includes any household or industrial cleaning product, disposable paper or plastic product, personal hygiene product, cleaning equipment or cooking utensil. 3. "Glean" means to gather or collect an agricultural crop that is donated by an owner or manager of property. 4. "Wholesome food item" means a raw, cooked, processed or prepared edible substance or beverage that is intended for human consumption and that meets all quality and labeling standards imposed by federal, state and local laws and regulations, including food not readily marketable due to any condition such as packaging, appearance, age, freshness, grade, surplus or size. 36-917. Food products derived from cultivated cells; labeling The manufacturer, packager or retailer of a food product that is derived from cultivated cells shall place a label on the food product's packaging that states: "cell-cultivated" or "cell-cultured". 36-931. Definitions In this article, unless the context otherwise requires: 1. "Cottage food product": (a) Means a food that is prepared in a home kitchen by or under the direct supervision of an individual who is registered with the department and that either, as defined by the department in rule: (i) Is not potentially hazardous or does not require time or temperature control for safety. (ii) Is potentially hazardous or requires time or temperature control for safety. (b) Does not include alcoholic beverages, unpasteurized milk or foods that are or that contain alcoholic beverages, fish and shellfish products, meat, meat by-products, poultry or poultry by-products unless the sale of those items is allowed by federal law, including all of the following: (i) Poultry, poultry by-products or poultry food products if the registered food preparer raised the poultry pursuant to the one thousand bird exemption set forth in 9 Code of Federal Regulations section 381.10(c). (ii) Poultry, poultry by-products or poultry food products if the poultry is from an inspected source pursuant to 9 Code of Federal Regulations section 381.10(d). (iii) Meat, meat by-products or meat food products if the meat is from an inspected source pursuant to 9 Code of Federal Regulations section 303.1(d). 2. "Department" means the department of health services. 3. "Home kitchen" means a kitchen in either, as applicable: (a) The residential home or dwelling of the individual who is registered with the department to prepare cottage food products, of a type that is normally found in a residential home and that does not exceed one thousand square feet. (b) A facility for individuals with developmental disabilities and of a type normally found in a facility for individuals with developmental disabilities. 4. "Potentially hazardous" means that a cottage food product does not meet the requirements of the food code published by the United States food and drug administration, as modified and incorporated by reference by the department by rule. 5. "Third-party food delivery platform" means an online business that acts as an intermediary between consumers and multiple food facilities to submit food orders from a consumer to a participating food facility and to arrange for the delivery of the order from the food facility to the consumer. 36-932. Labeling; food handler certification; sale and delivery requirements A. Cottage food products must be packaged at home with an attached label in a clear and legible printed or handwritten font that does all of the following: 1. Clearly states the name and registration number of the food preparer. 2. Lists all the ingredients in the cottage food product and the cottage food product's production date. 3. Includes the following statement: "This product was produced in a home kitchen that may come in contact with common food allergens and pet allergens and is not subject to public health inspection." 4. If the cottage food product was made in a facility for individuals with developmental disabilities, discloses that fact. 5. Includes a website address provided by the department that includes all of the following: (a) Contact information for consumers to report foodborne illnesses. (b) Information on how to verify a food preparer's active registration status. (c) Contact information for reporting issues regarding a food preparer's registration status. B. If a cottage food product is offered for sale online, the food preparer must provide a prominent notification that includes all of the following: 1. The name and registration number of the food preparer. 2. A list of all ingredients in the cottage food product and the cottage food product's production date. 3. The following statement: "This product was produced in a home kitchen that may come in contact with common food allergens and pet allergens and is not subject to public health inspection." 4. A website address provided by the department that includes all of the following: (a) Contact information for consumers to report foodborne illnesses. (b) Information on how to verify a food preparer's active registration status. (c) Contact information for reporting issues regarding a food preparer's registration status. C. The person preparing the cottage food product or directly supervising the food preparation must complete a food handler training course from an accredited program and maintain active certification. The food preparer must register with the online registry established by the department pursuant to section 36-136, subsection I, paragraph 13. The food preparer must display the preparer's certificate of registration when operating as a temporary food establishment. D. A food preparer: 1. Except as otherwise provided in this article, may sell cottage food products to the maximum extent allowed by federal law. 2. May not store cottage food products or food preparation equipment outside of the food preparer's home. E. Cottage food products may be sold and delivered only under the following conditions: 1. Cottage food products that do not contain dairy, meat or poultry must be sold by the food preparer of the cottage food product or an agent of the food preparer, including a third-party vendor, and delivered to the consumer by the food preparer, the agent of the food preparer, the third-party vendor or a third-party carrier. 2. Cottage food products that are dairy products or that contain meat or poultry must be sold by the food preparer of the cottage food product in person or remotely, including over the internet but excluding third-party food delivery platforms, and delivered to the consumer in person. 3. If a cottage food product is potentially hazardous or requires time or temperature control for safety and is transported before final delivery to consumers, the cottage food product must be maintained at an appropriate temperature during transport, cannot be transported more than once and cannot be transported for longer than two hours. 4. If a cottage food product is sold by a third-party vendor, the cottage food product must be sold in a separate section of the store or on a separate display case from nonhomemade food items and the vendor must display a sign that indicates that the cottage food products are homemade and exempt from state licensing and inspection. F. A cottage food product may not: 1. Be used as an ingredient in food products sold at a permitted retail food establishment. 2. Include marijuana or marijuana by-products. G. A cottage food product shall contain only ingredients that are from sources that are approved by law. H. A home kitchen that is used to prepare cottage food products may not operate as a commissary for the purposes of section 36-1761. 36-933. Applicability of article; rules; enforcement A. This article: 1. Is not more restrictive than the applicable federal laws. 2. Does not impede the department from investigating any reported foodborne illness. 3. Does not change the requirements for brand inspections, animal health inspections or any food inspections required by state or federal law, or change the requirements for the sale of milk, milk products, raw milk or raw milk products pursuant to section 3-606. 4. Does not affect any county or municipal building code, zoning code or ordinance or other land use regulation. B. The department shall adopt rules relating to cottage food products that are consistent with this article and section 36-136, subsection I and that include both of the following: 1. A provision requiring recertification as a food handler or suspension or revocation of an individual's registration for failing to comply with the requirements of this article or impeding in the investigation of a reported foodborne illness. 2. Guidance relating to approved ingredient sources. C. The department may enforce this article. D. A county may not be required to enforce this article. E. This article does not prevent the department and a local health agency, environmental agency or public health services agency from entering into a delegation agreement to enforce this article. 36-941. Definitions In this article, unless the context otherwise requires: 1. "Kosher" means sanctioned by and prepared under the traditional Hebrew rules and requirements or dietary laws. The word "kosher" as used in this article shall not be construed to include the words "kosher style." 2. "Place of business" means grocery store, market, hotel, inn, restaurant, boarding house, eating house, lunch room, cafeteria, caterer or other establishment or place in which meat, meat products, food or food products are sold for human consumption. 36-942. Sale of kosher food A. It is unlawful, with intent to defraud: 1. To sell, offer or expose for sale, by any method or in any form, any meat or meat product, food or food product, whether raw or prepared for human consumption, which in any manner or by any device is falsely represented or held out to be kosher or composed exclusively of kosher products. 2. To sell, offer or expose for sale in the same place of business, both kosher and nonkosher meat, meat products, food or food products, unless there is prominently displayed in the show window of the place of business a sign bearing the words, in block letters not less than four inches in height, "kosher and nonkosher food sold here," and over each kind of meat, meat product, food or food product exposed or offered for sale a sign stating in block letters not less than two inches in height whether it is kosher or nonkosher. 3. To display in a place of business or in a window or door thereof, or in hand bills or other printed matter exhibited or distributed in or outside a place of business, words or letters in Hebrew, or any character, sign, emblem, insignia or symbol in simulation thereof, without displaying in conjunction therewith in English letters of at least equal size as such characters a statement whether kosher only, nonkosher only, or both kosher and nonkosher meat, meat products, food or food products are sold therein. B. Possession of nonkosher meat, meat products, food or food products by a person advertising the sale of kosher meat, meat products, food or food products only, is prima facie evidence of intent to defraud. 36-943. Violation; classification A person violating a provision of this article is guilty of a class 1 misdemeanor. 36-971. Definitions In this article, unless the context otherwise requires: 1. "Bulk food" means unpackaged and unwrapped food in aggregate containers from which quantities are withdrawn by the consumer, excluding fresh fruits, fresh vegetables, nuts in the shell, rice, beans, food in salad bars and potentially hazardous food. 2. "Potentially hazardous food" means food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea or other ingredients in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms except clean, whole, uncracked, odor free shell eggs or food that has a pH level of 4.6 or below or a water activity value of 0.85 or less measured at twenty-five degrees centigrade. 3. "Product module" means a multi-use or single service food contact container designed for customer self-service of bulk food by either direct or indirect means. 36-972. Applicability of article This article applies to any person who displays, sells or offers for sale at retail any bulk food. 36-973. Labeling; exception A. Bulk food product modules shall be conspicuously labeled with the common name of the product, a list of ingredients in order of predominance and a declaration of artificial color or flavor and any chemical preservatives contained in the product. B. This section does not apply to bulk food manufactured on the premises or manufactured by the seller. 36-974. Protection from contamination A. Bulk food and product modules shall be protected from contamination during display, customer self-service, refilling and storage. B. Each product module shall have a tight fitting lid that is kept in a closed position at all times except during stocking and customer service. C. Containers supplied by customers shall not be used in a manner that contaminates bulk food. Take-home containers, including bags, cups and lids, provided for customer use shall be stored and dispensed in a sanitary manner. D. Pet food and nonfood items shall be separated by a barrier or open space from product modules and bulk food. E. Potentially hazardous food shall not be provided as bulk food for customer self-service. F. Bulk food removed from a product module by a consumer but not ultimately purchased shall not be returned to the product module or offered for resale by the retailer. 36-975. Dispensing A. Bulk food may be dispensed by either: 1. Mechanical dispensing devices including gravity dispensers, pumps, extruders and augers. 2. Manual dispensing from lidded product modules using utensils including tongs, scoops, ladles and spatulas. B. A manual dispensing utensil shall have a handle long enough to avoid consumer contact with the bulk food. When dispensing utensils are not in use, they shall be stored in the food with the handle extended out of the food, in a sleeve or protective housing attached or adjacent to the display unit or on a tether made of easily cleanable material and short enough to prevent contact with the floor. 36-976. Construction; materials A. Product modules and utensils shall be constructed of safe materials and shall be corrosion resistant, nonabsorbent, smooth, easily cleanable and durable under conditions of normal use. Product modules and utensils shall not impart odors, color, taste or contamination to the food. B. Product modules shall be easily removable from the display unit for servicing unless they can be effectively cleaned and sanitized without removal by a procedure that will not contaminate bulk food or related equipment. C. Surfaces of product module display units and all display equipment not intended for food contact, but exposed to food debris or other soiling, shall be nonabsorbent, smooth, easily cleanable, durable under conditions of normal use and free of unnecessary ledges, projections and crevices. Tethers, if used, shall be easily removable for cleaning. 36-977. Cleaning frequency A. Manual dispensing utensils shall be cleaned and sanitized at least daily, or at more frequent intervals based on the type of food and the amount of food particle accumulation or soiling. B. Product modules, lids and other equipment shall be cleaned before restocking, if soiled or at intervals on a schedule based on the type of food and the amount of food particle accumulation or soiling. Food contact surfaces shall be cleaned and sanitized immediately if contamination is observed or suspected. C. Any bulk food remaining in a soiled product module shall be discarded before the product module is refilled. 36-978. Signs A sign at least ten inches by fourteen inches shall be conspicuously posted within the immediate display area directing customers for health reasons to use the utensils provided when serving themselves, not to handle the food directly and not to consume food on the premises. 36-979. Disease control If the director of the department of health services finds that a disease or foreign matter is actually transmitted by a method of dispensing bulk foods that is permitted under section 36-975, the director may adopt rules which prohibit the dispensing of bulk foods in a manner authorized by the provisions of section 36-975 to ensure the public health and safety. The rules shall address the specific relationship between the disease or foreign matter being transmitted and the dispensing methods permitted under section 36-975. 36-980. Local standards Local governments shall not adopt standards governing persons, facilities or activities covered by this article which conflict with this article.